It is trite law that documents that are pre-existing, and not in themselves privileged in nature, do not take on the protection of legal professional privilege simply by virtue of being enclosed with a privileged communication to or from a lawyer. Where documents already exist, the mere fact of handing copies of them to a solicitor does not render them privileged.
In the age of e-mail and e-disclosure, the issue of how and when long-established doctrines of privilege apply to electronic communications in their various configurations is one that continues to vex practitioners and litigants alike. It is perhaps then no surprise that it has fallen to the courts to determine the question of whether privilege can extend to non-privileged attachments to a privileged email communication between lawyer and client.
In refusing permission to appeal from a decision of the Court of Appeal on whether an email with attachments is to be treated as a single communication for the purposes of legal professional privilege, the Supreme Court has drawn what appears to be a final line under this much-debated issue. Permission was refused on the basis that the application raised no arguable point of law.
The issue originally fell to be considered in the context of an application by the Financial Reporting Council (FRC) pursuant to provisions of the Statutory Auditors and Third Country Auditors Regulations 2016, SI 2016/649 (SATCAR) for an order requiring Sports Direct to provide the FRC with certain documents.
The FRC is a regulatory body with responsibilities for, among other things, the regulation of statutory auditors and audit work. It was conducting an investigation into Sports Direct’s previous auditors and, as part of that investigation, issued Sports Direct with a notice under SATCAR requiring it to provide, in electronic format, emails and attachments in its possession and control which related to the audit. Approximately 2,000 documents were provided by Sports Direct to the FRC in response, but 40 were withheld on the grounds of legal professional privilege. Those documents comprised emails and attachments to emails sent to or by Sports Direct’s legal advisers.
The FRC argued that, among other things, even if the emails themselves were protected by legal professional privilege, that privilege did not extend to attachments which were pre-existing documents and not in themselves privileged.
Decision of the High Court
At first instance, the High Court rejected Sports Direct’s submission that documents that were not privileged on a standalone basis could be withheld on the grounds that they formed part of a lawyer-client communication, with Arnold J describing the proposition that legal advice privilege might extend to a document simply because it is attached to an email to a lawyer as “startling”.
Decision of the Court of Appeal
On appeal, Lady Justice Rose acknowledged that the question before her was subtler than the one considered by the High Court: Sports Direct accepted that pre-existing documents would not be covered by privilege merely because they were sent to a legal adviser. It had however drawn a distinction between the question of whether the attachment itself was privileged and the question of whether the communication was privileged (i.e. the fact that the attachment had been sent to a legal adviser for advice). However, Rose LJ found that in so far as Sports Direct’s argument was that it was not the document but the fact of the communication of the document to a legal adviser which was privileged, that distinction did not survive the existing case law.
In upholding Arnold J’s decision and rejecting Sports Direct’s appeal, the Court of Appeal held 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… if a pre-existing document is simply handed over as part of that disclosure process, the receiving party might never find out that that document or a copy of it had at one time been sent to the legal adviser.”
The Supreme Court’s refusal to grant Sports Direct permission to appeal on this point serves as a further reminder to lawyers and their clients that simply attaching a document to a privileged email will not, of itself, mean that a party can avoid disclosure of that attachment in subsequent litigation, even where the contents are relevant to legal advice sought or given.
While the decision signals the end of the road for Sports Direct, it may not be the end of the legal story. It will be interesting to see in future cases whether the debate regarding email attachments is resurrected in claims for privilege made on a slightly different basis. In particular, it is noteworthy that Sports Direct did not seek to rely, either at first instance or in the Court of Appeal, on the Lyell v Kennedy line of authority which confers privilege on documents or selections from documents which reveal the "trend of”, or “give a clue” as to, legal advice. This line of authority has been revived in recent times (and was recently applied to prevent defendants going behind a claimant’s claim for privilege in communications with litigation funders on the basis those tended to reveal the legal advice given).
The realities of electronic disclosure and meta-data mean that it is not always the case that a party receiving disclosure will not be able to see if a document had been attached to an email withheld on grounds of legal professional privilege. It does not take a huge leap in imagination to conceive of a scenario where it could be argued that the contents or particular selection of attachments are such as to give rise to a reasonable foundation from which to infer the substance of legal advice given in an email. How such an argument would play out in that scenario (and in the light of the Court of Appeal’s judgment in Sports Direct International Plc v The Financial Reporting Council) remains to be seen.
 See Ventouris v Mountain  1 WLR 607
 Sports Direct International Plc v The Financial Reporting Council  EWHC 2284 at 
 Sports Direct International Plc v The Financial Reporting Council  EWCA Civ 177 at 
 Lyell v Kennedy (No 3) (1884) 27 Ch D 1; also Lord Bingham in Ventouris v Mountain  1 WLR 607 at p.615F.
 Edwardian Group Ltd, Re  EWHC 2805 (Ch)