Are email attachments privileged?
The Law Society Gazette reports that while an email may be covered by legal privilege, any attachments may not be. Citing the decision in Frasers Group Plc (formerly Sports Direct International plc) v The Financial Reporting Council Ltd in which the Supreme Court refused Frasers Group permission to appeal, the Gazette concluded that attachments were not covered by the same privilege as the email.
In this matter, the Financial Reporting Council was investigating the auditing firm Grant Thornton in relation to a structure adopted by Sports Direct International concerning VAT. The investigation included making a request to Sports Direct for documents. Around 200 of the requested documents were provided but 19 emails and 21 attachments were withheld on the basis of legal professional privilege, that they included confidential communications between Sports Direct and its lawyers.
The issue to be decided by the court was should an email and the attachments be treated as a single communication for the purposes of LPP. Then, if they were not, whether the email was privileged, and if so, whether the attachments were also to be treated in the same way.
The reports in question that were annexed to the privileged emails related directly to the VAT structure. In his judgement, Lord Justice Nugee concludes that the “3 reports were not for the sole or dominant purpose of litigation” and therefore were not protected from disclosure.
For an email and the attachments to be covered by legal professional privilege, both the email and each of the attachments must meet the test of being for the sole or dominant purpose of litigation.
Posted on 02/11/2021 by Ortolan
