A timely reminder for inhouse counsel 3 min read
The recent decision of TEC Hedland Pty Ltd v The Pilbara Infrastructure Pty Ltd is a reminder to inhouse lawyers about the risks of internal emails sent to multiple recipients.
Importantly, this case indicates that, for the purpose of assessing whether privilege can be claimed, multi-addressee emails will be considered as a number of separate communications between the sender and each recipient.
Emails are the standard form of written communication for most teams. In most companies, inhouse lawyers work closely with commercial members of the team. As a consequence, it is common for group email chains to evolve where team members – both commercial and legal – contribute to communications or are copied in for their information.
The TEC Hedland case is a timely reminder of the risk of such emails to claims of privilege. Emails to groups of people may have a 'mixed purpose'. This gives rise to the risk that privilege will not apply.
Often, while it may be less efficient, sending multiple separate emails, quarantining what might be the subject of a claim for privilege, might be the safest approach.
- The court may treat a communication to multiple recipients as multiple, separate communications between the sender and each recipient;
- This means that separate 'copies' of the email (ie in each of the recipient's inboxes) may be treated differently for the purposes of privilege;
- Where a group email seeks both legal and non-legal input, the copies received by non-lawyers will not be privileged unless the dominant purpose is to instruct the lawyer or obtain legal advice;
- Where an email has a mixed purpose (ie to instruct the lawyer and to obtain input from a commercial person), the dominant purpose test might not be satisfied; and
- Simply copying a lawyer in to an email does not mean it will be privileged – even if the content of the email is something the lawyer might be advising on.
The ability to claim privilege is an important right but it can be easily lost. While group emails are an important and efficient means of communication, inhouse lawyers need to ensure careful thought is given to group emails and their purpose. Often, while it may be less efficient, sending multiple separate emails, quarantining what might be the subject of a claim for privilege, might be the safest approach.
The dispute between the parties related to a power purchase agreement entered into on 28 July 2014 (PPA), pursuant to which the defendant (TPI) agreed to purchase electricity from the plaintiff (TECH) from a power station in Port Hedland.
TECH had challenged TPI's claim of privilege over certain documents that had been discovered in the proceeding. The majority of these documents were multi-addressee emails which were either addressed or copied to the defendant's inhouse counsel (amongst others).
The relevant legal principles governing claims of privilege were not in dispute. However, the question of whether multi-addressee communications should be considered as separate communications was an issue that had not previously been considered by an Australian court.
The court approved of the approach taken by the English Court of Appeal in respect of multi-addressee emails in The Civil Aviation Authority v The Queen (on the Application of Jet2.com Ltd):
- in respect of a single multi-addressee email sent simultaneously to various individuals for advice or comment, including a lawyer for input, the purpose of the communication must be identified. If the dominant purpose of the communication is to settle instructions to the lawyer, the communication is covered by legal advice privilege even if the communication is sent to the lawyer by way of information or it is part of a series of communications with the dominant purpose of instructing the lawyer;
- however, if the dominant purpose is to obtain the commercial views of the non-lawyer addressees, it will not be privileged even if a subsidiary purpose is to obtain legal advice from the lawyer;
- the response from the lawyer, if it contains legal advice, will almost certainly be privileged even if copied to multiple addressees; and
- multi-addressee communications should be considered as separate communications between the sender and each recipient. Where the email seeks both legal advice and non-legal advice or input, those to and from the lawyer will be privileged but otherwise they will not be privileged unless the dominant purpose is to instruct the lawyer.