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Insolvency Law

Expert guidance on all aspects of corporate and personal insolvency

23 OCT 2012

Hellard and Another v Irwin Mitchell [2012] EWHC 2656 (Ch)

(Chancery Division, His Honour Judge Purle QC (sitting as a judge of the High Court), 21 August 2012)

A firm of solicitors advised S in relation to proceedings against a financial adviser. At trial, the proceedings were dismissed on limitation grounds. S's trustees in bankruptcy issued proceedings against the firm for alleged professional negligence against the defendant solicitors' firm. The firm sought to rely upon advice from Counsel for S. The firm sought a declaration that the trustees had impliedly waived S's legal professional privilege, in particular in relation to matters between S, his counsel, and the firm. The trustees conceded that that the bringing of the proceedings had operated as a waiver or privilege with regard to the solicitors' file in the previous proceedings, including solicitors' notes of conferences with counsel and the deliberations of the solicitor, including deliberations with counsel, but asserted that privilege still attached attaching to any papers still in counsel's possession. HHJ Purle QC (sitting as a judge of the High Court) granted the declaration. Once there had been a waiver regarding the privileged communications, any evidence as to those communications could be adduced, including the evidence of anyone who was privy to the giving of the advice in question. It was not open to the trustees to pick and choose elements of counsel's advice or deliberations to be withheld from the court. The waiver would extend to working papers and deliberations of counsel to which the solicitor might not have been directly privy.

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