The Civil Aviation Authority v R Jet2.com Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Peter Jackson,Lord Justice Patten |
| Judgment Date | 28 January 2020 |
| Neutral Citation | [2020] EWCA Civ 35 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/0621 |
| Date | 28 January 2020 |
and
[2020] EWCA Civ 35
Lord Justice Patten
Lord Justice Hickinbottom
and
Lord Justice Peter Jackson
Case No: C1/2019/0621
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HON MR JUSTICE MORRIS
[2018] EWHC 3364 (Admin) and [2019] EWHC 336 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sam Grodzinski QC, Tamara Oppenheimer and Anna Medvinskaia (instructed by Mayer Brown International LLP) for the Appellant
Charles Béar QC and Nicolas Damnjanovic (instructed by Norton Rose Fulbright LLP) for the Respondent
David Pievsky (instructed by The Law Society of England and Wales) (written submissions only) for the Intervener
Hearing dates: 4 and 5 December 2019
Approved Judgment
Introduction
In considering legal advice privilege (“LAP”) in 1881, Bacon VC said this
“This subject is always a difficult one. On the one hand I have to consider the right of the Plaintiff to discovery, and on the other hand, to consider what are the rights of the Defendants to protect themselves against disclosing anything that has taken place in the course of confidential communications” ( Wheeler v Le Marchant (1881) 17 Ch D 675 at page 677).
In the event, the Vice Chancellor held that letters which passed between solicitors and surveyors in relation to the grant of a lease, sent with no litigation active or contemplated, were privileged from disclosure in later proceedings for the specific performance of the lease. Four days later, the Court of Appeal disagreed concluding that the letters were disclosable, and overturned his judgment. Since then, the subject has not become any more straightforward. Indeed, given the more complex arrangements that now exist for commercial transactions and the obtaining of legal advice, including new modes of communication between those involved in such activities, the difficulties have been compounded.
This appeal raises important issues concerning LAP, notably:
i) whether, for a communication to fall within the scope of that privilege, it must have had the dominant purpose of seeking or giving legal advice; and
ii) in the light of the answer to (i), the proper approach to determining the privileged status of email communications between multiple parties where one of the senders or recipients is a lawyer.
It also potentially raises issues concerning the proper approach to the collateral waiver of privilege in respect of documents otherwise non-disclosable, as the result of the voluntary disclosure of other privileged documents.
The issues arise in the context of judicial review proceedings issued on 12 April 2018, brought by the Respondent (“Jet2”), a company operating flights to and from the United Kingdom, against the Appellant (“the CAA”), the UK aviation industry regulator, challenging the lawfulness of the CAA's decisions (i) to issue a press release in December 2017 and (ii) subsequently to publish correspondence between the CAA and Jet2 in February 2018 including the provision of such correspondence to the Daily Mail. Both the press release and the CAA correspondence criticised Jet2's refusal to participate in an alternative dispute resolution scheme for the resolution of consumer complaints which the CAA had promoted and in which almost all other large domestic airlines, and a substantial number of non-domestic airlines flying into the UK, had chosen to participate (“the ADR Scheme”). The grounds of challenge to those decisions relevant to this appeal are that the CAA had no power to make the publications or alternatively, if it had such power, it exercised the power for unauthorised and improper purposes namely to damage Jet2's trading interests, to punish Jet2 for its decision not to join the ADR Scheme and to put pressure on Jet2 to join the voluntary scheme.
On 16 January 2018, before the publication of the correspondence (and, of course, well before the issue of proceedings), Jet2 wrote to the CAA complaining about the press release (“the 16 January 2018 letter”); to which the CAA responded on 1 February 2018 (“the 1 February 2018 letter”). Given the grounds of challenge, Jet2 made an application in the judicial review claim for disclosure of several categories of document, including (e) all drafts of the 1 February 2018 letter and (f) all records of any discussions of those drafts. Morris J concluded that all of those documents should be disclosed. Following a further hearing, he held that, even if he had found that those documents were privileged, that privilege was waived by the CAA in respect of all of those documents by the disclosure of an email dated 24 January 2018 from Matthew Buffey, the CAA's Head of Consumer Enforcement Department, to several CAA employees including Serena Lim, a Principal Legal Adviser. In this appeal, the CAA contend that the judge erred in both judgments, and in ultimately concluding that all drafts of the 1 February 2018 letter and records of discussion of the drafts should be disclosed.
Before us, Sam Grodzinski QC, Tamara Oppenheimer and Anna Medvinskaia of Counsel, appeared for the CAA; and Charles Béar QC and Nicolas Damnjanovic of Counsel for Jet2. We also had the benefit of written submissions from David Pievsky for the Law Society of England and Wales as Intervener. At the outset, I thank them all for their contribution to the debate.
The Factual Background
For many years, consumer groups and governments, both national and European, have been anxious to increase protection for consumers, including ensuring prompt and proportionate disposal of consumer complaints.
Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer dispute requires Member States to ensure that consumers can, on a voluntary basis, access ADR processes for disputes concerning contractual relations between consumers and traders. In the UK, that Directive is enforced through the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 (SI 2015 No 542) (“the 2015 Regulations”), which provide for an ADR scheme which is bilaterally voluntary, i.e. trader and consumer are each able to elect whether or not to adopt it.
So far as the air passenger industry is concerned, the CAA has for many years funded a service, the Passenger Advice and Complaints Team, which has a scheme to mediate consumer complaints (“the PACT Scheme”). However, under the 2015 Regulations, the CAA is the designated competent authority; and it is a vigorous proponent of the new ADR Scheme, expressing support for primary legislation to make participation in the scheme mandatory for the air passenger industry. In the meantime, it has the express objective of obtaining full participation in the scheme, and closing down the PACT Scheme. But, at present, the ADR Scheme is still voluntary; and Jet2 has chosen not to participate in it. Jet2 continues to rely on the PACT scheme.
As part of its promotion of the new ADR Scheme, on 27 December 2017, the CAA published a policy document, “ADR in the aviation sector – a first review” (CAP 1602) (“the Review”), together with a press release headed “Thousands more airline passengers are now receiving compensation thanks to [ADR]” (“the Press Release”) criticising airlines who had opted not to participate in the new scheme.
The Press Release gave the number of airlines which had signed up to the new scheme; and identified others by name which had not, urging them to do so. It singled out Jet2, the largest UK airline not to have signed up, for particular criticism. It said:
“… Jet2, the Leeds-based airline, one of the largest UK airlines, has ‘inexplicably and persistently’ refused to sign up – denying its customers access to a fair arbitration service, which can legally resolve disputed complaints fairly and efficiently”.
The internal quotation was a reference to observations by Andrew Haines, the CAA's Chief Executive Officer, whom the Press Release quoted more fully, as follows:
“… ADR is good for UK consumers, which is why it is extremely disappointing that Jet2, one of the UK's largest airlines, has so far inexplicably and persistently refused to sign up, denying their passengers access to an independent arbitration service.
Clearly this decision puts Jet2's customers, and those of other airlines that haven't yet signed up, at a distinct disadvantage, and in many cases, could mean their passengers are denied the fundamental rights they are entitled to.
I am therefore calling on Jet2 and other airlines including Aer Lingus and Emirates to commit to ADR in the interests of their passengers”.
Jet2 considered that these comments were false (or, at least, misleading) and unfair. On 16 January 2018, its Executive Chairman, Philip Meeson, wrote to Mr Haines, complaining about the tone and content of the Press Release and giving reasons why Jet2 had not signed up for the ADR Scheme: it considered ADR untried and untested in this context, and unsuited to the resolution of delay and cancellation claims which formed over 90% of the complaints made and which could, in Jet2's view, better be resolved by other means. On 18 January 2018, Jet2 issued its own press release; and, at some point, it put its 16 January 2018 letter onto its own website.
Following receipt of the 16 January 2018 letter and Jet2's press release, the CAA considered an appropriate response. In particular, in an internal email dated 18 January 2018 to Richard Moriarty (then Group Director of CAA's Consumer and Markets Group, and later Mr Haines's successor as Chief Executive Officer), Richard Stephenson...
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