CAA v. Jet2.com – Court of Appeal of England and Wales applies dominant purpose test to determining whether privilege applies to emails sent to both lawyers and executives

Is an email protected by legal advice privilege (“LAP”) if it is sent by an executive to multiple recipients, including an in-house lawyer but most of whom are fellow executives? Hickinbottom LJ stated:

In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for his input, the purpose(s) of the communication need to be identified. … If the dominant purpose of the communication is … to settle the instructions to the lawyer then … that communication will be covered by LAP. That will be so even if that communication is sent to the lawyer himself or herself, by way of information; or if it is part of a rolling series of communications with the dominant purpose of instructing the lawyer. However, if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, then it will not be privileged, even if a subsidiary purpose is simultaneously to obtain legal advice from the lawyer addressee(s).

As this test was not satisfied, the emails were not privileged.

Neal Armstrong. Summary of The Civil Aviation Authority v Jet2.Com Ltd, R. (on the Application of) [2020] EWCA Civ 35 under s. 232(1) – solicitor-client privilege.