Civil procedure – Discovery – Legal professional privilege – Deceased testator executing codicil leaving farm to claimants’ mother – Deceased’s solicitors informing claimants that purported gift of no effect when mother died – Claimants alleging first defendant solicitors negligently failing to investigate beneficial ownership of farm – Executors applying to strike out parts of particulars of claim allegedly referring to matters protected by legal professional privilege – Whether communications between deceased’s executors and solicitors being privileged as against mother and her estate – Application dismissed
The deceased (D) was married to the fifth defendant. By his will he appointed the third and fourth defendants as his executors. The fifth defendant’s brother and sister-in law (C) were tenant farmers of a farm, bought in the name of the sixth defendant, a company, of which D and the fifth defendant were the only shareholders. D also executed a codicil which provided for the farm to be given to C. Both the will and the codicil were drawn up by the first and second defendant solicitors.
The claimants, who were C’s daughters and the administrators of her estate, were told that the farm was owned by the sixth defendant so that the purported gift under the codicil had no effect. The claimants brought proceedings contending that, although the sixth defendant was the legal owner of the farm, it was held on trust for the deceased absolutely and the first and second defendants had negligently failed to investigate the beneficial ownership of the farm.
The third defendant applied to have certain passages in the re-amended particulars of claim struck out on the basis that they referred to matters protected by legal professional privilege.
Held: The application was dismissed.
(1) The passages in issue largely concerned communications between the solicitors and one or both of the executors. It was well established that a trustee could not always assert privilege against a beneficiary of the trust. Thus, in Talbot v Marshfield (1865) 2 Dr & Sm 549, while beneficiaries were denied access to advice that the trustees had received on how to defend a claim, they were held to be entitled to see advice that the trustees had taken on the exercise of a power. The claimants contended that the present case was similar. The advice that the solicitors gave to the third and fourth defendants, as executors of the deceased’s will, on whether the estate encompassed the farm was comparable to that which the trustees were required to disclose in Talbot and therefore the materials could not be privileged as against C or her estate. However, the authorities indicated, however, that privilege could be maintained against a person who had no more than an arguable claim to be a beneficiary: Wynne v Humberston (1858) 27 Beav 421 and O’Rouke v Darbishire [1920] AC 581 considered.
Some of what was said in O’Rourke fell to be reconsidered in the light of the decision of the Privy Council in Schmidt v Rosewood Trust Ltd [2003] 2 AC 709. However, it remained the case that a person had to, at least normally, establish as a minimum a prima facie case that he was a beneficiary before there could be any question of the court requiring a trustee or executor to disclose documents which would be protected by privilege if the applicant were not a beneficiary. Further, to require an applicant to show a prima facie case that he was a beneficiary accorded with the approach that the courts adopted where it was suggested that no privilege existed because the relevant document came into existence as part of a fraud. In the circumstances a prima facie case had not been established: Fountain Forestry Ltd v Edwards [1975] Ch 1 considered.
(2) The general rule was that, where solicitors had been retained by clients jointly, a single client could not waive privilege unilaterally. However, a single executor could act alone. Thus the law relating to executors differed from that relating to trustees, who had to act together. In the circumstances, it had been open to the fourth defendant to waive privilege and, on the facts, he had done so. In any event, privilege would have been waived by third defendant if it had not already been waived by the fourth defendant: Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, Peyman v Lanjani [1985] Ch 457 and Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (a firm) [1987] 1 WLR 1027 considered.
Penelope Reed QC (instructed by Mossop & Bowser, of Spalding) appeared for the claimants; Richard Wilson (instructed by Plexus Law) appeared for the first and second defendants; David Halpern QC (instructed by Kenneth Bush Solicitors, of King’s Lynn) appeared for the third defendant.
Eileen O’Grady, barrister
Click here to read transcript: Birdseye and another v Roythorne & Co and others
