When you seek advice from your lawyer don't you expect that advice to be treated as confidential?
Correspondence between a solicitor and client is privileged. That includes reports which are made in contemplation of litigation. Essentially that means, even in court proceedings which follow, neither the client nor the solicitor can be forced to divulge that correspondence.
So it might come as a surprise that attachments to emails (or, in old money, enclosures with a letter) are not necessarily covered by that privilege even if the covering letter or email are.
Leave to appeal the decision of Frasers Group Plc (formerly Sports Direct International plc) v The Financial Reporting Council Ltd to the Supreme Court was refused on the basis that the appeal did not raise an arguable point of law. The appeal related to the decision of the High Court and the Appeal Court (in England) ordering disclosure of three reports attached to an email.
Frasers Group Plc might have envisaged that the advice given on their application of VAT in distance selling transactions (as set out in the reports) might be protected. But the courts decided that as the reports were not prepared for the sole, or indeed dominant, purposes of litigation, they did not attract the protection of privilege.
Commentators have said that this is actually unsurprising - and it is.
It all comes down to whether the document itself is privileged - not the status afforded to the covering letter or email. That is why the Supreme Court refused leave to appeal.
Like the old adage about the sow's ear, you cannot give a document privileged status by dressing it up in the envelope of a privileged email or letter.
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