Birdseye & anr v Roythorne & Co & ors [2015] EWHC 1003 (Ch)

1. JOANNA ELIZABETH BIRDSEYE

2. LUCY-JANE COOKE (Personal representatives of the estate of Rosemary Cooke)

V

1. ROYTHORNE & CO

2. ROYTHORNES LLP

3. ROBERTO MARCO FRANCESCO POLA

4. JOHN WILLIAM DOUBLEDAY

5. NORMA ELIZABETH DRING

6. DRING BROS LIMITED

Analysis

Roythorne & Co (Roythornes), a firm of solicitors, acted for Mr & Mrs Dring and, following his death on 28 September 2008, the executors of Mr Dring, Mr Pola and Mr Doubleday. Roythorne & Co (Roythornes), a firm of solicitors, acted for Mr & Mrs Dring and, following his death on 28 September 2008, the executors of Mr Dring, Mr Pola and Mr Doubleday. Mr & Mrs Dring were the only shareholders of Dring Bros Limited, which had acquired Manor Farm to enable Mrs Dring’s brother and sister in law (Mrs Cooke), who were the tenant farmers, to continue to live there. Roythornes prepared Mr Dring’s will and codicil. Under the codicil Mr Dring purported to give Manor Farm to Mrs Cooke, who herself died in November 2008. The claimants, who were Mrs Cooke’s daughters and the administrators of her estate, asserted claims against Mr Dring’s estate and, in due course, a compromise was achieved under which Mrs Dring varied her husband’s will to provide for a legacy to Mrs Cooke of £300,000. This expressly stated that the claimants were not prevented from bringing a claim against Roythornes and that is what they did in 2012, it being alleged that they had acted negligently in the preparation of Mr Dring’s codicil; alternatively that Roythornes negligently failed to investigate the beneficial ownership of Manor Farm. The particulars given in support of that allegation in the claim form related to communications between Roythornes and one or both of Mr Pola and Mr Doubleday. The solicitors for the claimants had obtained a copy of Roythornes’ file relating to the administration of Mr Dring’s estate from the solicitors acting for Mr Doubleday. Separately, they had received a letter from Mr Pola referring to those communications and offering to complete a witness statement with all of those documents attached as appendices. The defence to the re-amended particulars of claim asserted that the particulars related to matters which were privileged in the hands of the executors, and sought to have those particulars struck out. The issues, therefore, were whether the communications between Roythornes and the executors privileged as against Mrs Cooke and her estate; if so, whether privilege had been waived by Mr Doubleday and/or Mr Pola, and loss of confidentiality.

Held (dismissing the application to strike out the particulars):

1) It was argued that the executors of Mr Dring’s estate were in a similar position to that of trustees who, it was well established, could not assert privilege against a beneficiary. However, this rule did not apply if a person had no more than an arguable claim to be a beneficiary. Accordingly, if they were to succeed on this issue, the claimants needed to make out a prima facie case that Manor Farm was held on trust for Mr Dring. It was not enough that Mrs Cooke was the intended donee of Manor Farm under the terms of Mr Dring’s codicil. Legal professional privilege attached to the communications between Roythornes and the executors of Mr Dring’s estate.

2) As to the question of whether privilege had been waived by Mr Doubleday and/or Mr Pola, the general rule in the case of a joint retainer was that a single client could not waive privilege unilaterally. As their privilege was joint, it could only be waived jointly and it was argued, in reliance on this principle, that Mr Doubleday could not waive privilege without the consent of Mr Pola. However, they were the executors of Mr Dring’s estate and, as such, the general rule applied that ‘the act of one of joint representatives is regarded as the act of all and is binding’. In this respect, the law differed from that relating to trustees, who have to act together. Moreover, Mr Doubleday had not purported to disclose the file of Roythornes on behalf of himself and Mr Pola, in the mistaken belief that Mr Pola had agreed to the disclosure. When his solicitors released the file, they were acting for Mr Doubleday and did not claim that Mr Pola had agreed to disclosure. Thus, Mr Doubleday waived privilege in the file of Roythornes when it was sent to the solicitors acting for the claimants. In the case of Mr Pola, he had evinced a clear and express intention to waive privilege, and it did not matter that he was not aware of his rights. The general rule was that once the substance of privileged material had been divulged to one’s opponent, even by inadvertence, privilege was prima facie lost. In short, privilege would have been waived by Mr Pola if it had not already been waived by Mr Doubleday.

In conclusion, there was no reason why the claimants should not be allowed to rely on the documents which had been disclosed, in support of the allegations made in the particulars.  Confidentiality, which was a pre-condition for privilege, had been lost. Once privilege had been lost, it was too late to attempt to correct the mistake by applying for injunctive relief.  

JUDGMENT MR JUSTICE NEWEY:  [1] The question raised by the present application is whether certain passages in the re-amended particulars of claim should be struck out on the basis that they refer to matters protected by legal professional privilege. Basic facts [2] The proceedings arise out of the death of Mr Dick Dring, who was …
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Counsel Details

Penelope Reed QC (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT , tel 020 7242 6201, email clerks@5sblaw.com) instructed by Mossop & Bowser (10 Spalding Road, Spalding, Lincolnshire PE12 7LP, tel 01406 422651) for the claimants.

Richard Wilson (3 Stone Buildings, Lincoln’s Inn, London WC2A 3XL, tel 020 7242 4937, email clerks@3sb.law.co.uk) instructed by Plexus Law (Peninsular House, 30-36 Monument Street, London EC3R 8NB, tel 0844 245 4000) for the first and second defendants.

Mr David Halpern QC (Four New Square, Lincoln’s Inn, London WC2A 3RJ, tel 020 7822 2000, email barristers@4newsquare.com) instructed by Kenneth Bush Solicitors (Kenneth Bush Solicitors, Evershed House, 23/25 King Street, King’s Lynn, Norfolk PE30 1DU, tel 01553 692737) for the third defendant.

Cases Referenced

Legislation Referenced

  • Administration of Estates Act 1925, s2
  • The Law of Privilege (2nd ed)
  • Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, (20th ed)