Privilege and the challenges of email

Before this transformation, we lived in a world of paper drafts, red (and other coloured) pens and Tipp-Ex (other brands of correction fluid were available).  A small number of people would share a single paper draft of a document, whether a report, an agreement or a press release, amend it in manuscript and (where necessary) meet to sign off the document. Drafts were often destroyed and little if any record kept of the discussion. 

We live in a different world where companies and organisations run their business using email and individuals create countless documents daily on their smartphones. Everyone’s two penn’orth (cents) is recorded for posterity - the bad ideas, the embarrassing comments, the airing of frustrations thought better of after pressing “send”. The desire to deal with today’s email before your inbox begins to fill up again leads to ill-advised, or at best unconsidered, replies, often sent late at night.  Before smartphones, you would have slept on the problem and dealt with it back in the office in the morning, often after you’d run it past a colleague.

The mistaken “reply to all” has happened to most of us.  Just as prevalent is the indiscriminate copying in of others, whether they be lawyers or non-lawyers, internal or external to the organisation.  This is where applying the rules about privilege becomes particularly tricky.

Legal advice privilege

Legal advice privilege was born in Tudor times, in a world where documents were rare costly records. The law of privilege wasn’t designed for our world where emails can be sent to several recipients, some lawyers, some not, some of the content referring to legal advice and some not, perhaps with attachments requiring comment or amendment, and often including a chain of earlier messages not intended for the current recipients.

Applying rules devised for a single document to multi-recipient emails is not straightforward.   The difficulties are compounded by the much criticised Court of Appeal ruling in Three Rivers (No 5). Until the Supreme Court overrules Three Rivers (No 5), legal advice privilege is restricted to communications between a lawyer and those individuals who are authorised to seek and obtain legal advice on behalf of an organisation. This will not include most employees, even where they have been authorised to provide information to the lawyers to enable them to advise the organisation.

Disputed claims to privilege are likely to arise where internal emails are sent to several employees as well as to an in-house lawyer.  This was the scenario in R (Jet2.com) v Civil Aviation Authority where the Court of Appeal confirmed the approach to be taken in such cases.  Firstly, multi-addressee communications should be looked at as separate bilateral communications between the sender and each recipient.  Secondly, when deciding whether legal advice privilege attaches to each communication between sender and recipient, a dominant purpose test should apply.  The party claiming legal advice privilege must show that the dominant purpose of a communication was to obtain or give legal advice.

If an email combines a privileged communication to a lawyer with a non-privileged communication to a non-lawyer, the non-privileged communication will not be privileged unless the dominant purpose of the email is to instruct the lawyer.

Litigation privilege

Litigation privilege does not suffer from the Three Rivers (No 5) problem since it may protect communications between employees and communications with third parties. However, it is subject to its own dominant purpose test and this may be harder to satisfy than previously thought. The Court of Appeal reviewed the test for litigation privilege in WH Holding Ltd v E20 Stadium LLP. It held that litigation privilege did not apply to internal emails between a company’s board members about a commercial proposal to settle the dispute.  These emails were not seeking advice or information for the sole or dominant purpose of "conducting" adversarial litigation and could not therefore be protected by litigation privilege.

Privilege and attachments

The rarefied and subtle analysis of past authority involved in applying our privilege rules is impractical – how could a litigant in person be expected to understand the wealth of case law from the past few years alone?  The complexity of our rules is overloading the courts with satellite litigation.

The second battle over privilege and disclosure to reach the Court of Appeal this year (the first was Jet2.com) is FRC v Sports Direct International Plc. The decision reinforces the protection of privilege where a regulator calls for documents under its statutory powers.  Privilege will be a defence unless the statute overrides privilege expressly or by necessary implication.  That is the case whether the privilege belongs to the person who is subject to the investigation or that person’s client. 

The regulatory aspect has been widely commented upon, but the decision also grapples with the knotty issue of how to apply privilege to emails with attachments.  The Court of Appeal reviewed the position in ordinary civil proceedings (not applicable on the facts to the regulator’s notice in Sports Direct) where disclosure requirements apply to freestanding documents. The court followed its earlier decision in Ventouris v Mountain and held that pre-existing documents sent to a lawyer for the purpose of obtaining legal advice do not become privileged. The fact that disclosure of the document in question reveals what was sent to the lawyer is not a sufficient reason to confer privilege on the attachment. Emails and their attachments have to be considered separately when it comes to privilege.

Comment

Nowadays we tend to speak of email in derogatory terms.  It can be a problem if used in an ill-considered way but it is still a much easier and cheaper method of communication than the traditional alternatives such as post, conference calls and meetings in person.  It may not continue to be used so widely - we could develop enough self-control to rein in our individual use of email and employers concerned about their employees’ wellbeing could impose restrictions on out of hours work email.  If teenagers are anything to go by, email is already yesterday’s technology.

Unfortunately, even if we now stem the flood, there is a plethora of emails already sent that could come back to haunt us.  There’s also nothing to suggest that real time messaging platforms will not take over communications at work - the disclosure focus will merely move away from email to messaging, video and audio instead.

As disclosure battles about privilege continue to proliferate, organisations may begin to recognise the damage and cost caused by uncontrolled email and decide to take steps to limit its use.