Documents attached to an email are not covered by legal professional privilege (LPP), even when the message itself is privileged the Supreme Court has clarified. LPP is a right which protects communications between lawyers and their clients from being disclosed as evidence in court or to a third party.
The Supreme Court refused Frasers Group – a company formerly known as Sports Direct International – permission to appeal after the High Court and Court of Appeal had both ordered it to disclose 21 documents which were attached to privileged emails. The Supreme Court said that Frasers’ application did not raise an arguable point of law.
The Financial Reporting Council (FRC) is investigating accountant, Grant Thornton, over a structure adopted by Sports Direct International for the treatment of VAT. During the probe Sports Direct withheld 19 emails and 21 attachments requested by the FRC on the grounds that they were covered by LPP.
The FRC challenged Sports Direct’s decision in court. It argued that the attachments were pre-existing documents, which were not privileged simply because they were attached to emails covered by LPP.
The Court of Appeal backed the FRC. Lady Justice Rose said: “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.”
James Burgoyne, Director – Claims & Technical, Brunel Professions observes, “This ruling is relevant to all professional firms involved in litigation and means that a party cannot withhold relevant pre-existing documents by claiming that they were attached to a privileged email communication between themselves and their lawyer.”
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