Alan Edwards & Co Solicitors v TWM Solicitors LLP

Legal professional privilege belongs to the client and may be waived only by the client or a person authorised to act for it. Waiver need not be express. It may be inferred from conduct or other indirect evidence where the evidence establishes the waiver on the balance of probabilities.

Where a client in liquidation authorises its solicitors to obtain and hand over a privileged file for the purposes of another person’s litigation, and the authority contains no reservation of privilege, the court may infer that privilege was waived when the file was handed over.

The claimant sought a contribution from the defendant in connection with negligence claims brought by Ms Galloway. The defendant had previously acted for Enfranchisement & Leasehold Solutions Limited (ELS), which later entered liquidation and was dissolved.

In 2016, ELS’s liquidator signed an authority leading to the defendant’s file being provided to Payne Hicks Beach LLP, who acted for Ms Galloway. Copies of the file were later disclosed under Tomlin orders settling Ms Galloway’s claims. The issue was whether ELS’s legal professional privilege in communications with the defendant had survived or had been waived.

1. Privilege and waiver. Legal professional privilege belonged to ELS. Only ELS, acting through its authorised representatives, could waive it. Waiver could nevertheless be inferred without an express statement from the entitled person’s conduct or other indirect evidence.
2. Evidence concerning Payne Hicks Beach. The court found, on the balance of probabilities, that Payne Hicks Beach acted for Ms Galloway rather than for ELS’s liquidators. The file references and surrounding correspondence supported that conclusion. The absence of direct evidence from Payne Hicks Beach did not prevent the court from drawing the necessary inference.
3. Effect of the liquidator’s authority. In July and August 2016 the right to assert privilege belonged to ELS’s liquidators. The authority signed by Ms Palmer contained no reservation. It authorised the file to be handed over to Payne Hicks Beach, acting for Ms Galloway, for the purposes of her claim. The court inferred that Ms Palmer intended the file to be handed over without retaining ELS’s privilege.
4. Disposition. Waiver occurred when the file was handed over in August 2016. The copy file disclosed under the Tomlin orders was therefore not subject to ELS’s privilege. The standard reservation concerning privileged documents in the Tomlin orders did not alter that conclusion, since it could relate only to ELS’s privilege and that privilege had already been waived.

Not an appeal. The judgment determined a discrete privilege issue arising in the claimant’s contribution claim.