Following closely behind the Jet2 decision (see our note,
Legal professional privilege protects from disclosure confidential communications between a client and a lawyer for the dominant purpose of giving or obtaining legal advice ("legal advice privilege") and confidential communications between a client and a lawyer, or a lawyer or client and a third party, which come into existence for the dominant purpose of litigation that is reasonably contemplated or has commenced ("litigation privilege").
In
The case should be of interest to anyone who might be caught up in a regulatory investigation, including those who are not its target.
The Facts
The FRC accepted that, in the ordinary course, the withheld emails would be protected by privilege, but in the circumstances of this case claimed it was entitled to their disclosure. It claimed that the attachments were not privileged at all and should also be disclosed.
A Further Exception?
The Court of Appeal reaffirmed the importance of legal professional privilege as a fundamental human right. Aside from cases of 'iniquity' (i.e. where lawyer/client communications are sent with a criminal purpose), privilege can only be modified or abrogated by statute by an express statement or necessary implication; general or ambiguous words are not sufficient. This is because general words in statutes are not presumed to override fundamental human rights, even if that might appear to be their literal effect.
The SATCARs have no express provision overriding privilege and, in fact, expressly preserve it. Accordingly, on the basis of a much-criticised observation from a
- a regulator has a statutory power to request documents;
- is bound by a duty of confidentiality in respect of the information in the documents; and
- the holder of the privilege is someone other than a person against whom adverse findings might be made as a result of the regulator's use of the information.
The FRC claimed that the exception is that there is no infringement of privilege at all or that there is an infringement of a technical nature only which is regarded as authorised by the relevant statutory provision on the basis of a less stringent test than that required for statutory abrogation (i.e. express statement or necessary implication). The Court of Appeal rejected both of these arguments.
There was no support in the
Attachments to Emails
The FRC's request only sought "emails and attachments" (not also freestanding documents). The attachments which
Relying on Jet2 (and earlier authority), the Court also rejected this argument. Attachments are to be treated separately from their parent emails for the purpose of privilege, which means if an attachment is not of itself privileged, it does not become so when sent as part of an otherwise privileged communication. Taking a broad approach, the Court also held that on the proper construction of the FRC's document request, an attachment met the request's criteria if it was attached to an email that met the criteria (whether or not, by itself, it met the criteria).
Comment
While it may not be the last word on the subject (both parties have sought permission to appeal to the Supreme Court), this is a reassuring decision for anyone who might be involved in a regulatory investigation, whether as its target or as a third party who holds potentially relevant documents and information. It is plain that, iniquity aside, privilege will only be abrogated where
Footnotes
1 [2020] EWCA Civ 177.
2 R (
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