Jet2.com Ltd v Civil Aviation Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 05 February 2019 |
| Neutral Citation | [2019] EWHC 336 (Admin) |
| Docket Number | CO/1481/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 February 2019 |
[2019] EWHC 336 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Morris
CO/1481/2018
Mr C. Béar QC and Mr N. Damnjanovic (instructed by Norton Rose Fullbright LLP) appeared on behalf of the Claimant.
Mr S. Grodzinski QC, Ms T. Oppenheimer and Ms A. Medvinskaia (instructed by Mayer Brown) appeared on behalf of the Defendant.
The background
On 10 December 2018 I handed down judgment in this case in relation to the Claimant's application for disclosure (“the Judgment”). Following a further hearing on 19 December 2018, I made an order addressing the consequences of the Judgment (“the Order”). The Order contained various directions and set a further hearing on outstanding matters for yesterday. The background to the case in the contested disclosure applications is at paragraphs to 10 of the Judgment. In particular, I also refer to paragraphs 5 to 11 of the order.
The central outstanding issue concerned the Defendant's claim for legal professional privilege in respect of subsequent drafts of the Defendant's letter to the Claimant dated 1 February 2018 and all records of discussions concerning those drafts. These are documents which fell within categories (e) and (f) of the Claimant's original application. That issue is addressed at paragraphs 93 to 103 the judgment.
By the time of the hearing on 19 December 2018, the Defendant had indicated that it was seeking permission to appeal against my decision on legal privilege in respect of those documents. However, because the position as to precisely which documents were, and which were not, privileged under the terms of the Judgment was not clear, a further order was made and consideration of the issue of permission to appeal was deferred. Paragraphs 5 and 6 of the Order provides follows:
“5. In relation to all other drafts of the Letter and all records of discussions concerning those drafts, the Defendant shall by 4 pm on 17 December 2018: (a) disclose all those documents to the Claimant over which it does not claim privilege and (b) to the extent that the Defendant asserts legal advice privilege over any of the documents, it shall file and serve a witness statement explaining (i) over which documents privilege is claimed and (ii) on what basis privilege is asserted.
6. The Defendant shall by 4 pm on 18 January 2019 file and serve a further witness statement which shall (a) identify separately each email and each attachment or other document over which privilege is claimed; (b) state the parties to and time of each such email and the nature of the attachment or other document (eg. “draft letter with amendments made by X”) and its authorship; (c) state whether the document is or is not privileged under the terms of the judgment of 10 December 2018 … and, in each case, why it so classifies it by reference to the terms of the Judgment; and (d) in each case, where the Defendant considers that a document is not privileged under the terms of the Judgment, but is privileged on the basis of principles which the Defendant wishes to assert on appeal, why it so classifies it by reference to those principles.”
Whilst an array of matters have been raised between the last hearing on 19 December and yesterday's hearing, the matters which now fall to be determined have narrowed to the following:
(1) Whether an email dated 18 January 2018 between Ms Lim and Ms Caldera, both in-house lawyers employed by the Defendant, is privileged under the terms of the Judgment. This is document 3(b) in Annex 1 to the witness statement of Ms Imogen Brooks dated 22 January 2019.
(2) Whether the Defendant should have permission to appeal against the Judgment, and orders consequential upon it, in so far as it determines that certain documents falling within categories (e) and (f) are not privileged. For reasons which I will explain shortly, that issue now raises a further issue, which I describe in the next paragraph.
(3) Whether by previously disclosing an email dated 24 January 2018 from Mr Buffey to addressees, including Ms Lim, the Defendant thereby waived privilege in all similar discussions of the draft February letter. The Claimant contends that, if there was such a waiver, then any appeal is futile and permission to appeal should be refused anyway.
(4) The Claimant's further application for disclosure of documents relating to communications between the Defendant and the Daily Mail, communications of that type having been the subject of category (c) in the original application as referred to in paragraph 20 of the Judgment.
(5) A further application by the Claimant for further disclosure of documents, pursuant to an application notice dated 30 January 2019.
Developments since 19 December 2018
Since the last hearing, on 11 January 2019 the Claimant, by application notice and supporting witness statement, applied in respect of the further Daily Mail documents. On 14 January 2019 the Defendant disclosed a further bundle of documents and on 21 January 2019 indicated that it was undertaking a further review of documents. On 22 January 2019 Ms Brooks, the Defendant's Principal Legal Adviser, made a detailed witness statement in line with paragraph 6 of the Order, setting out those documents which, under the terms of the Judgment, the Defendant considered to be privileged and those which it considered not to be privileged and, in respect of the latter category, setting out whether, on the Defendant's asserted basis of privilege, the document would be privileged. Documents were set out in detail in a table in annex 1 to her statement with numbered documents.
At the same time, Ms Brooks identified 11 documents which she described as “Problem Documents”. These are documents which she contends that it was not possible to determine whether the document was or was not privileged and invited me, by way of further application notice dated 23 January 2019, to view each such document on an ex parte basis.
On 28 January 2019, following the further review, the Defendant disclosed a further batch of documents (running to some 93 pages). On 30 January 2019 the Claimant issued a further application notice for further disclosure of three categories and for disclosure of documents which the Defendant was asserting to be privileged. That application was supported by the third witness statement of Mr Springthorpe. In respect of the Daily Mail documents at paragraph 9 of the Order, I specifically directed the application to be served on Associated Newspapers Limited (ANL) with liberty to ANL to respond and apply to intervene in the proceedings by 21 January 2019.
ANL responded on 30 January 2019 by an email from its Group Legal Adviser to the parties (and not sent to the Court) stating that:
“[ANL] will not formally respond to the application or apply to intervene in the proceedings.”
That email went on, nevertheless, to maintain ANL's previously expressed objections, stating:
“Notwithstanding this commercially expedient decision, based on the desire to avoid incurring unnecessary legal expenses, ANL wishes to emphasise its objection to the deeply concerning approach that Jet2 has adopted to the disclosure of the private communications of Ms Bischoff …”
Structure of this judgment
I will address first the two issues which are, effectively, outstanding issues relating to the applications which were before me from the outset; namely, document 3(b) and the waiver issue. Although the waiver issue has been raised by the Claimant as a further and overriding reason to refuse permission to appeal, logically it requires substantive determination, rather than a view as to its prospects of success on an appeal. I will then address the Defendant's application for permission to appeal based on the Defendant's grounds of appeal. Finally, I will address the Defendant's further applications for disclosure made by the application notices dated 11 and 30 January 2019, respectively.
What is privileged under the judgment: document 3(b)?
Before turning to document 3(b) itself, I refer to the documents which Ms Brooks has labelled “Problem Documents”. The Defendant's position on these documents now has been clearly stated by Mr Grodzinski in oral argument yesterday. This is clear on the transcript (at p.244 line 15 to p.245 line 12). I do not propose to paraphrase what he there stated. The effect of that position is that the Defendant does not invite me now to make any ruling on whether those documents are, or are not, privileged under the terms of the Judgment and accepts that, for present purposes, I can treat them as if they are not privileged under the terms of the Judgment and, thus, subject to any appeal, fall to be disclosed. I therefore say no more about the Problem Documents, as far as they concern what is and is not privileged under the Judgment.
As to document 3(b), Mr...
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