Email attachments not covered by legal privilege, court clarifies

Email attachments are not to be covered by legal professional privilege even if the email is, the Supreme Court effectively decided this week.

The court refused permission to appeal in Frasers Group Pls (formerly Sports Direct International plc) v The Financial Reporting Council Ltd after the retailer challenged the decision of the High Court and Court of Appeal to disclose 21 email attachments.

The issue before the Supreme Court was whether an email with attachments should be treated as a single communication for the purposes of LPP, and so if the email was privileged, whether the attachments were also to be treated in the same way. The court refused Frasers Group permission to appeal because its application did not raise an arguable point of law.

The Financial Reporting Council, the regulatory body for auditors, is investigating the conduct of Grant Thornton and an individual at the accounting firm over a structure adopted by Sports Direct International concerning VAT.

As part of its investigation, it made a request for various documents: Sports Direct provided around 200 documents but withheld 40 documents (19 emails and 21 attachments) on the basis they are covered by privilege. The emails included confidential communications between Sports Direct and its lawyers.

Reflecting on the case last month, Keoghs associate Roger Hill said: ‘The situation is now clear - sending reports (or other documents) which are not privileged to representatives via privileged communication does not mean those reports become privileged just because they were provided with correspondence which is protected.’