The next step

To the Court of Appeal’s ruling in the case mentioned in the article

[Weblink]

Legal privilege - does copying in your solicitor count?

Legal advice privilege

Where a communication such as a letter or an email comes into existence for the “dominant purpose” of existing or contemplated litigation it will be covered by the principle of legal advice privilege (LAP).

So, for example, if an employer is threatened with or receives a tribunal claim and a senior manager is instructed to deal with its solicitors on the employer’s behalf, any communications between those two parties are subject to LAP.

Private matter

In practical terms, that means the employee or parties bringing or threatening the litigation aren’t entitled to see those communications. This can be helpful, particularly where an employee might have a case.

Where another manager or director is copied into communications with an employer’s legal representative, e.g. for information purposes, LAP will usually still apply providing the dominant purpose test is satisfied.

Risk. However, LAP protection can and often will cease to apply where an email is forwarded to another party. For this reason, all of your communications around proposed or threatened litigation should be handled carefully.

Copying in your brief

Let’s suppose two senior managers are discussing a case and possible strategies and decide to copy your solicitor in so they don’t have to spend time bringing them up to speed or repeating themselves. Would this type of communication be protected by LAP?

This was the issue before the Court of Appeal in The Civil Aviation Authority v R (on the application of Jet2.com Ltd) 2020 (see The next step ).

Background facts

Jet2.com had sought disclosure of various documents. The Civil Aviation Authority claimed the documents were protected by LAP because its in-house lawyers had been involved in the discussions as they were copied into emails.

The Court of Appeal found that where a communication is sent in order to circulate and/or to collect information, or to obtain further comments, or to get a commercial view, it will not be protected by LAP. So, in other words, in these situations the other side could well be entitled to see those documents.

Note. The only time they wouldn’t be disclosable is where the dominant purpose test applies, but this is unlikely to be the case where a solicitor has been copied in to a communication only for information or time-saving purposes.

Tip. Whilst it may be frustrating, the safest way to approach things is to have one person appointed to handle legal issues with a legal representative on your behalf. They can then update other people. The content of these discussions and communications will also have legal protection.

For the Court of Appeal’s ruling in this case, visit http://tipsandadvice-personnel.co.uk/download (PS 22.12.06).