Privilege waived in litigation between law firms


Marsh: Secondary evidence of waiver

The High Court has ruled that legal professional privilege was waived by the liquidators of a company when they released a set of documents to a litigant to help her sue her law firm for negligence.

Chief Master Marsh said the issue of privilege had been raised because, although the litigant had settled the negligence claim against her law firm, that firm was now suing another law firm for a contribution.

The master said the background to the negligence case lay in a group leasehold enfranchisement exercise in Knightsbridge, London; the leaseholders used Enfranchisement and Leasehold Solutions Ltd (ELS), which in turn instructed TWM Solicitors.

Amber Galloway, who took part in the exercise, instructed Alan Edwards & Co to act for her in the enfranchisement.

Using London firm Payne Hicks Beach (PHB), she later launched two negligence actions against Alan Edwards & Co. As part of the settlement, she provided a copy of the ELS file relating to its retainer with TWM to the solicitors for Alan Edwards.

Alan Edwards then brought the present contribution proceedings against TWM.

ELS went into administration and subsequently liquidation. It was dissolved in June 2017. One of its joint liquidators, Julie Palmer, confirmed she had no objection to Alan Edwards using the documents in the TWM file.

However, since she had no authority to waive a dissolved company’s privilege, the question was whether waiver took place earlier.

The master said it was possible for privilege to be waived “without there being an express statement to that effect”.

He explained: “The court is able to infer in an appropriate case from the available evidence that the person or entity who is entitled to assert the privilege has waived that right from their behaviour or from other indirect evidence.”

Master Marsh said there was no direct evidence, but there was “secondary evidence”. PHB asked for and received TWM’s file in August 2016 with written authority from Ms Palmer; only the liquidators at that time had the power to waive ELS’s privilege.

The judge concluded on the balance of probabilities that Ms Palmer “intended to authorise the file being handed over” for the purposes of Ms Galloway’s claim against Alan Edwards “without any intention to retain ELS’s privilege”.

It followed that the file handed over under the Tomlin orders was not subject to ELS’s privilege.




Leave a Comment

By clicking Submit you consent to Legal Futures storing your personal data and confirm you have read our Privacy Policy and section 5 of our Terms & Conditions which deals with user-generated content. All comments will be moderated before posting.

Required fields are marked *
Email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Blog


GEO – the impact of AI on digital marketing for law firms

GEO represents the biggest change in online business generation that I can remember. You cannot afford to stick with the same old engine optimisation techniques.


What the law can learn from fintech’s onboarding revolution

Client onboarding has always been slow. It’s not just about the paperwork and manual workflows; it’s also about those long AML checks and verifications.


Civil enforcement – progress at last with CJC report

‘When do I get my money?’ is a question that litigators acting for successful parties are used to fielding. The value of judgments is of course in the recovery made.


Loading animation