Legal Advice privilege – cc is not enough!

What is legal advice privilege?

The meaning of ‘legal advice privilege’ is, unfortunately, not quite as simple as the name suggests. As we detailed in our previous articles on privilege  and the duty of disclosure, it is a special protection that applies only to the discussions and correspondence between a person and their legal adviser. For this purpose, a legal adviser includes solicitors and barristers, but not HR advisers and not necessarily in-house lawyers (unless it is clear they are acting as legal advisers at the time). The privilege applies when the client is taking legal advice, and it means that the advice (and the correspondence seeking that advice) does not have to be disclosed, even at later Tribunal proceedings which relate to the matter.

Legal advice privilege is separate from litigation privilege (which is only applicable where there are existing/contemplated proceedings), where the scope is wider in terms of who can be regarded as a relevant adviser. Employers often require advice before this later stage is reached, and so legal advice privilege remains important.

The latest developments

In the recent Court of Appeal decision of Civil Aviation Authority v R Jet2.com two main issues were considered:

1. Whether, in order for a communication to be protected by legal advice privilege, the dominant purpose of that communication had to be to seek or give legal advice.

The Court of Appeal’s answer to this was yes. Although the fact that a person is speaking to a lawyer may give rise to an initial suggestion that legal advice is being sought, the test focuses on an interpretation of the communications, and in order for privilege to apply the dominant purpose needs to be legal advice (rather than, for example, purely commercial advice).

2. Whether legal advice privilege will apply if email communications are between multiple parties, where one of the senders or recipients is a lawyer.

The answer to this is, not necessarily. If, for example, correspondence has been sent and a solicitor was copied in, but the main purpose of the correspondence was not to get legal advice, then this would not attract legal advice privilege. This could apply where the dominant purpose is to obtain the commercial viewpoint of recipients, or if it is just to keep a lawyer updated.

The position was no different for meetings and subsequent records of them, such as minutes. If the dominant purpose of the discussions is non-legal, then the contents of the meeting will not generally be privileged, but any records of legal advice sought or given within the meeting should be.

What to watch out for

Hopefully you are already aware of the rules on privilege and are careful about documents which could be disclosable. It is important to remember the legal distinction between correspondence with a solicitor and correspondence with another adviser such as internal or external HR.

Also, we have sometimes had clients who copy us in on correspondence in an attempt to make it privileged – the CAA case referred to above is an illustration of why that will not work. It is always worth thinking through what the purpose of a particular communication is before it is sent. If in doubt, it is best to seek legal advice before communicating information more widely.