The normative use of emails in the course of business communications raises many legal issues. A recent matter ruled upon by the court involved the disclosure of email attachments and issues of legal privilege. The specialist commercial lawyers at Bahamas law firm ParrisWhittaker are specialists in advising on disclosure issues in commercial disputes.

A ruling1 from the UK’s Court of Appeal, which has highly persuasive authority on the courts in The Bahamas, dealt with the issue of email attachments. At issue was whether such attachments, which were pre-existing documents, were privileged if attached to a privileged e-mail.

What’s the background?

The UK’s Financial Reporting Council (FRC), as statutory auditors, asked the court for an order requiring Sports Direct International plc (SDI) to provide it with certain documents. Though it had produced the majority of documents requested, SDI refused to disclose several others, claiming they were protected by legal professional privilege.

Those documents included 19 emails with 21 attachments which were withheld on the basis that they formed part of a lawyer-client communication. The SDI argued that even if the emails were protected by legal professional privilege, certain attachments were not so protected given they were pre-existing documents.

The Court of Appeal ruled in favour of the FRC and found that the attachments were not themselves privileged, even if attached to an email that was privileged.

It held that ordinary civil procedure process requires the disclosure of all free-standing documents as are relevant to the pleaded issues in dispute between the parties. This is the case whether or not they have been attached to emails at any point. It pointed out that a party does not have to disclose more than one copy of each document, so if a pre-existing document is simply handed over during disclosure, the other party may never know that it (or a copy of it) had at one time been sent to the lawyer.

However, if attachments are treated as part of a single communication with the privileged email to which they were attached, the whole communication would then be regarded as privileged.

What does this mean?

The court made clear, in simple terms, that the fact an email may itself be privileged does not confer privilege on the pre-existing document. Privilege does not protect either the document itself or the fact that it was sent to a legal adviser under cover of a privileged communication.

A party in litigation cannot, therefore, try to circumvent disclosure rules by claiming an attachment sent under over of a privileged email is, therefore, also privileged.