The appeal arose from a CMO that ordered specific disclosure of a number of documents and gave directions for resolution of the privilege issue in respect of other documents. The Respondents argued the order for disclosure included documents subject to legal advice privilege and/or litigation privilege and/or which are irrelevant and therefore that the CMO was wrong in law.

Bourne J allows the appeal on one ground - that the ET’s disclosure order wrongly omitted to make an exception for documents which further evidence might show tended to reveal the contents of communications to which legal advice privilege applied - but dismissed four other grounds. In particular he concludes the ET found as a fact that in the relevant communications that third parties had acted as more than a mere “means of communication” for the client and therefore the communications were not privileged (see Jet2.com Ltd v Civil Aviation Authority [2020] EWCA Civ 35)