Birdseye & Anor v Roythorne & Co & Ors

A person claiming access to privileged trust or estate documents must ordinarily establish at least a prima facie case that they possess the beneficiary status on which access depends. Being named as a beneficiary in a will is insufficient where it is clear that the relevant property may not have formed part of the estate.

Where solicitors act for joint executors, the general rule that the act of one joint personal representative binds all may permit one executor unilaterally to waive privilege. Privilege may also be lost through inadvertent disclosure, without proof that the person entitled to it knew of the right or intended to waive it. Once confidentiality has been lost and no injunction is sought, pleadings based on the disclosed material should not ordinarily be struck out.

The claimants, personal representatives of Rosemary Cooke’s estate, sued solicitors, executors and others concerning the administration of Dick Dring’s estate and a disputed gift of Manor Farm. They relied on attendance notes from communications between the executors and the solicitors.

One executor applied to strike out pleaded matters derived from those notes, asserting that they remained protected by legal professional privilege. The issues were whether privilege could be asserted against the claimants, whether either executor had waived it, whether confidentiality had been lost, and whether the pleaded references should be removed.

1. Beneficiary status. A person must ordinarily establish at least a prima facie case that they are a beneficiary before the court will require disclosure of documents which would otherwise be privileged. The claimants could not rely merely on Rosemary Cooke’s having been named as a donee in the will. They failed to establish a prima facie case that Manor Farm was held on trust for Dick Dring.
2. Waiver by a joint executor. Privilege arising from a joint retainer is ordinarily joint. However, the law relating to executors differs from that relating to trustees. The act of one joint personal representative is generally regarded as the act of all and is binding. That rule applied to the pre-existing executor relationship, notwithstanding any later transition towards trusteeship. Mr Doubleday therefore waived privilege when his solicitors disclosed the file.
3. Waiver without knowledge or intention. Alternatively, Mr Pola’s letter would have waived privilege. Privilege may be lost by inadvertence, and waiver does not require awareness of the legal right or an intention to waive. The reasoning in Peyman v Lanjani [1985] Ch 457 did not govern privilege.
4. Loss of confidentiality and relief. The claimants had possessed the attendance notes since May 2013, and the documents had also been listed by Mr Doubleday. Confidentiality, a precondition of privilege, had consequently been lost. Even if privilege had not already been waived, the court would not have struck out the pleading. An injunction application had not been made and it would have been unfair to treat the present application as one for injunctive relief.
5. Mr Pola’s application was dismissed.