Privilege Not Lost Where Email Containing Legal Advice Found On Employee's Work Laptop

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Privacy, IT and Internet, Data Protection, Privacy Protection, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Author: Mr Julian Copeman and Maura McIntosh
• Published date: 16 May 2023

In a recent decision, the High Court has held that privilege was not lost against a party where its employee's privileged email was found on a work laptop handed over to the employer in the context of an investigation: Taylor v Evans [2023] EWHC 935 (KB).

The decision is of interest in illustrating the principles that apply in determining whether privilege is lost where a party's privileged material has come into the hands of an opponent to litigation, other than through accidental disclosure in the course of the litigation process. In the former case, the question is whether the material remains confidential against the recipient, in which case there is no loss of privilege. This in turn depends on whether a reasonable person in the recipient's position would realise that the information was communicated in confidence. (In the latter case, where there is accidental disclosure of privileged material in the course of litigation, privilege will generally be lost unless the material was obviously disclosed by mistake.)

In the present case, the court held that it was, or should have been, clear to the recipient that the information remained confidential. The circumstances of the case are fairly extreme, in that the recipient realised that the laptop contained the employee's personal emails, and that the employee mistakenly believed they had been removed. The decision contrasts with Simpkin v The Berkeley Group Holdings plc [2017] EWHC 1472 (QB) (considered here) in which it was held that an employee's documents were not privileged as against his former employer because the employee had no reasonable expectation of privacy in relation to material created and stored on the employer's IT systems. Quite where the line will be drawn in any given case will depend on all the circumstances, which may make the result difficult to predict.

The judge noted that the fact a document is privileged does not prevent an opponent deploying it: it is for the privilege holder to seek an injunction to prevent the document being used, and if it does so all the usual bars to equitable relief (delay, clean hands, etc) will apply. (See here for a case where an injunction would have been refused because the relevant document raised questions about a witness's independence.) In the present case, however, the recipient of the email applied for a declaration that it was not privileged; the privilege holder was not seeking an injunction, and so the equitable bars to relief did not apply...