When a corporation claims legal professional privilege over documents commissioned by an in-house lawyer on the instructions of a senior officer, the purpose of that senior officer (not merely the in-house lawyer's subjective purpose) is of central relevance to the dominant purpose inquiry. Failure to call the instructing officer to give evidence, without explanation, will give rise to a Jones v Dunkel inference that the officer's evidence would not have assisted the privilege claim. The burden lies on the party claiming privilege to establish the dominant purpose was privileged, and this burden is not discharged merely by evidence of the in-house lawyer's purpose where the controlling mind's purpose remains unproven.
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