The High Court has ruled that communications between a Surrey-based law firm and its former client are not subject to legal professional privilege, finding that privilege can be waived 'without there being an express statement to that effect'.
In Alan Edwards & Co Solicitors v TWM Solicitors, the High Court was asked to decide whether communications between TWM Solicitors and its former client, Enfranchisement & Leasehold Solutions Limited (ELS) enjoyed privilege. London firm Alan Edwards is seeking a contribution from TWM after being pursued for negligence.
The case relates to the purchase of an exclusive garden square in central London. Lease owners at 49 Lennox Gardens, Knightsbridge, instructed ELS to help them buy the freehold of Lennox Gardens in 2008. The enfranchisement company – which was dissolved in 2017 – instructed TWM.
Amber Galloway, a lessee who participated in the enfranchisement exercise, also instructed Alan Edwards to assist her. However, she eventually brought two claims against the firm alleging negligence.
Having settled the claim, Alan Edwards is now seeking a contribution from TWM and the High Court was asked to decide whether ELS’ privilege in the TWM file is extant.
In judgment, Chief Master Marsh said it is ‘trite’ to say the privilege belongs to the client, in this case ELS, and only ELS was able to waive it. ‘However, it is possible for privilege to be waived without there being an express statement to that effect,’ he said.
‘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 concluded that the copy file handed over pursuant to the settlement agreement between Galloway and Alan Edwards was not subject to ELS’ privilege.
He concluded on the balance of probabilities that Galloway’s solicitors requested ELS’ liquidators to obtain TWM’s file for the purposes of Galloway’s claim against Alan Edward; that one of the joint liquidators intended to authorise the file being handed over for the purposes of that claim; that she signed the authority letter without any intention to retain ELS’ privilege; and that by handing over the file privilege was waived.
‘Waiver therefore took place in August 2016,’ Master Marsh said.