Supreme Court Refuses Permission to Appeal Ruling that Email Attachments Do Not Attract Legal Privilege Purely Because the Email Attaching it Does

Last year, the Court of Appeal handed down judgment in the case of Sports Direct International Plc v The Financial Reporting Council (FRC) [2020] EWCA Civ 177, which serves as a useful reminder, regarding the the scope of legal professional privilege (LPP) in a technology-driven world.

When ordered to disclose documents to the FRC, pursuant to powers conferred by the Statutory Auditors and Third Country Auditors Regulations 2016 (SI 2016/649) (‘SATCAR’), 40 documents were withheld by Sports Direct, of which 19 were emails and 21 were email attachments.

These 40 documents were withheld on the proviso that that the emails were safeguarded by LPP, as they included confidential communications between the company and its legal representatives.

Whilst it was accepted that the emails alone met the criteria of standard correspondence covered by LPP, the key question was whether, by extension, attachments fell under the same umbrella of protection simply because they were treated as ‘part and parcel’ of privileged emails to which they were attached.

In essence, the Court of Appeal was asked to decide whether privilege relates to individual documents, or alternatively to communications (which may contain a mixture of privileged and non-privileged documents).

Although the Notice obligating disclosure was based in statute, as opposed to standard disclosure, Lady Justice Rose usefully clarified that there are no special rules to override LPP[i] and that:

‘The ordinary civil procedure process requires the disclosure of all free-standing documents which are relevant to the pleaded issues in dispute between the parties, regardless of whether they have been attached to emails at any point’.

Following Ventouris v Mountain [1991] 1 WLR 607,[ii] which ruled that non-privileged pre-existing documents do not attract privilege by affixation to a privileged letter, it was therefore the case that privileged emails do no not confer privilege on to pre-existing attachments, ‘in so far as those attachments are not themselves privileged’:

‘… privilege does not protect either the document itself or the fact that it was sent to a legal adviser under cover of a privileged communication’.

It is important to note that last month, news surfaced that the Supreme Court had refused permission to appeal the Court of Appeal’s decision, given that the application seeking permission did not raise an ‘arguable point of law’. As such, the present legal position will remain unchanged.[iii]

 

[i] Neil Rose, ‘No special rules allowing regulators to override LPP’ (20 February 2020 Legal Futures) <https://www.legalfutures.co.uk/latest-news/no-special-rules-allowing-regulators-to-override-lpp> accessed 22 January 2021.

[ii] See also Imerman v Tchenguiz & Ors [2009] EWHC 2902 (QB).

[iii] Neil Rose, ‘Email attachments are not privileged just because message is’ (21 January 2021 Legal Futures) <https://www.legalfutures.co.uk/latest-news/email-attachments-are-not-privileged-just-because-message-is> accessed 22 January 2021.

John Hyde, ‘Email attachments not covered by legal privilege, court clarifies’ (21 January 2021 Law Gazette) <https://www.lawgazette.co.uk/law/email-attachments-not-covered-by-legal-privilege-court-clarifies/5107110.article> accessed 22 January 2021.