In Jet2.com Ltd v Civil Aviation Authority  EWCA Civ 35, the English Court of Appeal held that a "dominant purpose" test applies to the underlying rationale for legal advice privilege (as it does to litigation privilege). This should be of interest to practitioners in Hong Kong because Hong Kong has adopted a controlling "dominant purpose" test for legal advice privilege since the landmark judgment of the Hong Kong Court of Appeal in Re Citic Pacific Ltd (No. 2)  4 HKLRD 20.
Indeed, the English common law's adoption of a "dominant purpose" test puts its rationale for legal advice privilege on the same footing as that in Singapore, Australia and Hong Kong. However, these jurisdictions disavow a narrow meaning of a client in a corporate context, which (apparently, under English common law) purports to limit legal advice privilege to those employees that are formally tasked with seeking and receiving legal advice. In short, Hong Kong common law adopts a more expansive approach to the meaning of "client" in a corporate context – the "client" is the corporation and it can seek advice and give instructions through those employees authorised to act for it in the process of obtaining legal advice.
As such, answering the first principal issue for determination in Jet2.com, the English Court of Appeal adopted a classic description of legal advice privilege – namely, any confidential communication between a client and a lawyer for the dominant (or sole) purpose of giving or receiving legal advice.
The second principal issue for determination in Jet2.com was the proper approach to determining the privileged status of emails between multiple parties, where one of the senders or recipients is a lawyer (for example, see paras. 2 and 100 of the judgment). This is a difficult issue in practice and fact dependent. Some general observations may be made.
- Multi-addressee communications (for example, emails) are preferably to be considered as separate bilateral communications between the sender and each recipient. In determining whether each communication is privileged, one applies a "dominant purpose" test. Where a multi-addressee communication seeks both legal advice and non-legal (for example, commercial) advice, the communication to and from a lawyer will be privileged. The multi-addressee communication to or from non-lawyers will not be privileged, unless the "dominant purpose" test is satisfied.
- As regards multi-addressee emails to or from lawyers (including, in-house lawyers), the status of the sender or recipient as a lawyer suggests a lot. In most cases why else does a client or a client's representative contact a lawyer if it is not ultimately to obtain legal advice? Such is the wide meaning of concepts such as "legal advice", "relevant legal context" and "continuum of the communications", that almost anything exchanged in confidence between a lawyer and a client is privileged (Ma JA, as he then was, Yau Chiu Wah v Gold Chief Investment Ltd & Anor  3 HKLRD 553). Indeed, it is difficult to see how a court can consider what is privileged without reference to what only a client knows or did.
- Applying traditional principles, the courts are more likely to allow claims to legal advice privilege with respect multi-addressee communications sent to lawyers than they are with respect to communications sent to non-lawyers. While this may be stating the obvious it does emphasise the importance of instructing lawyers as early as possible and of trying to keep requests for legal advice distinct from communications for other purposes (for example, commercial advice). Jet2.com as an explanation of the underlying rationale for legal privilege is not a particularly easy read, but a crucial passage in the judgment is worth remembering (para. 93(iii)):
"Legal advice privilege is a privilege, and those who wish to take advantage of it should be expected to take proper care when they do so".
- Some basic precautions should be taken in order to protect claims to legal advice privilege (see Industry Insights, September 2019, "In-house Lawyers and Client Privilege"). This is particularly true for lawyers operating as part of "deal teams" or in "data rooms" or in competition investigations, in respect of which it is generally better not to share privileged information – where privileged information is shared, ensure that it is done through the lawyers and pursuant to strict confidentiality and non-waiver agreements. In this regard, the role of in-house lawyers has rarely been more important.
There is a final lesson from Jet2.com and one that is too often forgotten (for example, see paras. 10-15 of the judgment). Email is not a substitute for a phone call. It is a written communication that is legible and potentially disclosable to a court, tribunal or regulator. The same formalities that apply with respect to letters should also apply to emails. This is especially true for anyone "working from home".
– Warren Ganesh, Senior Consultants, RPC