Email attachments are not privileged just because message is

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Supreme Court: Permission refused

The Supreme Court has refused to interfere in a ruling that legal professional privilege (LPP) which covers an email does not extend to any attachments.

The court has decided to refuse Mike Ashley’s Frasers Group permission to appeal against a Court of Appeal decision last year, stating that the application did not raise “an arguable point of law”.

It had been asked whether an email with attachments should be treated as a single communication for the purposes of LPP, such that if the email was privileged, its attachments were also privileged.

The Court of Appeal decided that, so long as the attachments themselves were not privileged, then they did not attract privilege by being attached to an email that was.

The Financial Reporting Council (FRC) is investigating the conduct of Grant Thornton and an individual there over a structure adopted by Sports Direct International PLC (now Frasers Group PLC) concerning VAT.

As part of its investigation, the FRC requested and received 2,000 documents but Sports Direct withheld 40 documents – 19 emails and 21 attachments – on the basis that they were covered by LPP.

After a first instance decision by Mr Justice Arnold, the main part of the Court of Appeal’s ruling was that there were no special rules allowing regulators such as the FRC to override the protection of LPP.

The FRC also argued that, even if the emails themselves were protected by LPP, some of the attachments were pre-existing documents and were not protected simply by being attached to privileged emails. Arnold J found for the regulator.

Lady Justice Rose said “the proposition that what is privileged in this case is not the document but the fact of the communication of that document to a legal adviser” could not survive the Court of Appeal’s ruling in Ventouris and the case law cited in it.

“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.”

The court dismissed the appeal on this point “in so far as those attachments are not themselves privileged”.