Asserting Privilege in the Email Era – Dominant Purpose and Continuum of Advice

A recent decision of the Court of Appeal of England and Wales has clarified the position in relation to asserting Legal Advice Privilege in that jurisdiction focussing on issues such as the dominant purpose test and the continuum of advice. This article briefly explores these issues and how they are interpreted in Irish law.

Legal Advice Privilege can apply to all communications made in confidence between lawyers and their clients for the purpose of giving or obtaining legal advice even at a stage where litigation is not in contemplation. The legal advice must state what should sensibly and prudently be done, and should amount to more than mere legal assistance.

Dominant Purpose Test

The judgment of Lavan J in Ochre Ridge1 set out twelve factors which must be considered in assessing whether a document is covered by legal advice privilege, including that the dominant purpose of the communication must be the seeking or giving of legal advice. This was followed in Hansfield Developments v Irish Asphaltwhere McKechnie J held that a dominant purpose test must be applied to both Legal Advice Privilege as well as Litigation Privilege in Ireland.

The application of the dominant purpose requirement for Legal Advice Privilege is consistent with the approach in England and Wales where the judgment in CAA v Jet2.com3 also provides clarity on the approach taken in that jurisdiction on many tangential issues which have not yet been extensively litigated in the Irish courts.

What is the Continuum of Advice?

When assessing the dominant purpose of a document for privilege purposes, modern business practice cannot be ignored. Today, in the act of giving or receiving legal advice there is often protracted communication between legal advisors and clients. Sometimes an item contained in this body of communication contains the relevant legal advice but sometimes its purpose is simply to keep the other party informed or updated on recent developments in relation to that advice. Consideration of this continuum of advice is now more necessary than ever given the instantaneous nature of modern communications. Legal advice is now more likely to be given regularly and continuously rather than in large individual tranches and this can affect the ability to assert privilege over these communications.

The Irish courts have considered this issue to some degree. In McMullen v Kennedy4, Murphy J ruled that the interpretation of legal advice in Balabel5 to “include advice as to what should prudently and sensibly be done in the relevant legal context” must extend to the continuum of advice. This was further explored in UCC v ESB6 where the High Court quoted an English text stating that Legal Advice Privilege “protects communications between client and lawyer which are part of the continuum of the giving and getting of legal advice”7 However, Barr J. highlighted in McMahon v Irish Aviation Authority8 that only communications made for the purpose of the giving or receiving of advice can be privileged, communication of other information is not included.

As outlined above, the Irish courts have considered this issue only sporadically and the continuum of advice has been slowly evolving as a concept here.The rate at which the various methods of communicating legal advice are developing means a substantive judgment is needed to provide clarity in this jurisdiction. In this regard, the recent English case of CAA v Jet2.com10 may also provide some guidance on how to approach this difficult issue.

Civil Aviation Authority v Ltd (“Jet2”) had decided not to participate in the Civil Aviation Authority’s (“CAA”) new ADR Scheme which commenced in 2017. The CAA subsequently published correspondence (“the 1 February 2018 letter”) between the parties in relation to that matter. Jet2 brought judicial review proceedings in April 2018 and the High Court required the CAA to discover all drafts and records of discussions of those drafts of the 1 February 2018 letter despite its attempts to assert Legal Advice Privilege over those documents. The CAA appealed this ruling to the Court of Appeal (England and Wales).

In finding no good reason to depart from previous authority such as Three Rivers (No. 6),11 which suggested that a dominant purpose test should be considered for Legal Advice Privilege, Hickinbottom LJ. confirmed that a dominant purpose test must be carried out to determine if Legal Advice Privilege can be asserted over a document.

He then gave guidance on the correct assessment of the dominant purpose of documents forming part of a continuum of advice. Hickinbottom LJ. confirmed the position from Balabel12 that “where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach.” Expanding on this, he established that in considering its dominant purpose, the question must be asked if that document might realistically disclose the nature of the legal advice given or sought. Documents should be considered in the context of what comes before and after and must not be examined independently. Documents that form part of the continuum of communication, therefore, that would not individually attract legal advice privilege will benefit from the protection where their dominant purpose is found to be that of keeping the solicitor or client informed or of sharing information such that legal advice may be sought or received.

Tips for Practice

With these new developments in mind and the potential evolution in judicial thinking which they signal, organisations may face uncertainty in making privilege calls. Organisations should consider the following approaches to ensure communications relating to legal advice are protected by Legal Advice Privilege:

  • Obtain legal advice separately from all other business advice if possible in order to maintain the clear dominant purpose of seeking legal advice that the document holds
  • When circulating a document for legal opinion from internal or external counsel, avoid excessive copying of non-lawyers to ensure the dominant purpose of the communication remains intact and the entitlement to assert privilege is not compromised
  • With dominant purpose in mind, include markings and labels such as “Privileged - Legal Advice” or include sentences which state the purpose for which the document is being created
  • Ensure the dominant purpose is clear in both emails and attachments independently. A successful assertion of privilege over a parent email does not necessarily mean the attached document will be privileged, unless that attachment realistically discloses the nature of the legal advice, and vice versa.

Also contributed by Seán Corcoran.

  1. Ochre Ridge Ltd v Cork Bonded Warehouses Ltd [2004] IEHC 160.
  2. Hansfield Developments v Irish Asphalt [2009] IEHC 420.
  3. The Civil Aviation Authority v R (on the application of Ltd) [2020] EWCA Civ 35.
  4. McMullen v Kennedy [2007] IEHC 263.
  5. Balabel v Air India [1988] Ch. 317 at 330 D-331A.
  6. University College Cork – National University of Ireland v Electricity Supply Board [2014] IR 525.
  7. Malek (ed.), Phipson on Evidence, 17th ed., (London, 2010) at p. 646, para. 23-18.
  8. McMahon v Irish Aviation Authority [2016] IEHC 221.
  9. See also the decision of Costello J in Hurstridge Finance Ltd v. Lismore Homes (Unreported, High Court, 15th February, 1991) where he observed that “[t]here may be circumstances where surrounding documents consulted for the purpose of drafting and for the purpose of obtaining legal advice which included elements of assistance, are privileged;”
  10. The Civil Aviation Authority v R (on the application of Ltd) [2020] EWCA Civ 35.
  11. Three Rivers (No 6) [2004] UKHL 48.
  12. Balabel v Air India [1988] 1 Ch 317.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.