For Your Eyes Only: Email attachments excluded from client privilege

February 13, 2021

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3 min read

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What's going on here?

The legal professional privilege which applies in email correspondence does not extend to the attachments included in those emails. This has effectively been confirmed by the Supreme Court’s refusal to grant leave to appeal in Frasers Group Plc (formerly Sports Direct International plc) v The Financial Reporting Council Ltd [2020] EWCA Civ 177.

What does this mean?

In litigation, the claimant may request the defendant to disclose specific documentation to enable the alleged breach to be investigated in full. Such documents could later be cited by the claimants as evidence against the defendants. It is therefore presumed to be in the defendant’s best interests to withhold potentially compromising documents on legitimate grounds where possible. One such ground is withholding documents on the basis of privilege – documents which meet the criteria for disclosure but do not have to be provided to the other side if they are confidential or sensitive. Here, the defendant sought to rely on legal advice privilege: the principle of English law that covers confidential communications between a solicitor and their client regarding legal advice.

 The issue that Frasers Group (formerly Sports Direct) sought to appeal to the Supreme Court was whether an email with attachments should be considered as a single communication for the purposes of Legal Professional Privilege (LPP), which includes both legal advice and litigation privilege. If so, any non-privileged attachments to privileged emails should be automatically treated as privileged because the email itself is. Ultimately, the Supreme Court refused Frasers Group permission to appeal because its application did not raise an arguable point of law. In essence, the Supreme Court has agreed with the Court of Appeal that sending non-privileged documents via a privileged communication does not mean those documents become privileged just because they are attached to email correspondence which is!

What's the big picture effect?

Scrutinising the case Frasers Group v Financial Reporting Council itself clarifies why this decision will have repercussions on future litigation procedure.

The Financial Reporting Council, the regulatory body for auditors, investigated accounting firm Grant Thornton’s conduct in handling a VAT structure adopted by Sports Direct International. As part of its investigation, the Financial Reporting Council requested various documents: Sports Direct provided around 2000 documents but withheld 40 (19 emails and 21 attachments) on the grounds they are covered by privilege. When ordered to disclose the 21 email attachments by the High Court and the Court of Appeal, the retailer subsequently challenged both decisions to the Supreme Court, arguing the attachments were privileged by virtue of their inclusion with the privileged emails.

Perhaps the case facts do not lend themselves to the most mesmerising narrative. Moreover, this decision relates purely to the disclosure of the documents, so will now be followed by the full investigation into Grant Thornton. But, as is often true with precedents, the greatest interest in this interpretation of privilege is how it could be applied in other cases moving forward. Indeed, the key strength of the Court of Appeal’s ruling rests in its generic nature – there will be few grounds for judges to distinguish Fraser Group, suggesting this precedent has a broad ratio decidendi, with plausible application to all document disclosure disputes.

Nonetheless, one distinguishing aspect to explore is how documents reviewers will perceive other attachments. For instance, how does this principle apply when privileged attachments are included in a non-privileged email? Further, if the document is privileged, but a section has been isolated for use in that email, does this compromise the included section? Although in some sense this decision reduces uncertainty regarding the privileged status of correspondence between solicitors and clients, it may reduce client confidentiality at the same time.

For now, the inclusion of a non-privileged attachment in a privileged email does not guarantee its protection. Until that day, there is no harm in checking your email again before clicking send!

Report written by Seb Stacey

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