Joanna Elizabeth Birdseye and Another v Roythorne & Company and Others

Hearing date: 18 March 2015

The question raised by the present application is whether certain passages in the Re-Amended Particulars of Claim should be struck out on the basis that they refer to matters protected by legal professional privilege.

Basic facts

The proceedings arise out of the death of Mr Dick Dring, who was married to the fifth defendant ("Mrs Dring").

Mrs Dring's brother and sister-in-law, Mr Michael Cooke and his wife Rosemary ("Mrs Cooke"), were tenant farmers at a property known as Manor Farm. In 1987, the farm was bought in the name of the sixth defendant ("Dring Bros"), a company of which Mr and Mrs Dring were the only shareholders, so that the Cookes could continue to live there.

In 1980, Mr Dring had made a will under which he had appointed his wife and the third and fourth defendants ("Mr Pola" and "Mr Doubleday") as his executors and left his residuary estate to his wife. Mr Pola and Mr Doubleday were respectively Mr Dring's accountant and a friend.

In 1999, Mr Dring executed a codicil which provided for Manor Farm to be given to Mrs Cooke. Like the will, the codicil was drawn up by the first defendants, Roythorne & Co. For convenience, I shall refer in this judgment to both the first defendants and Roythornes LLP, the second defendants, as "Roythornes".

Mr Dring died on 28 September 2008. Following his death, probate was granted to Mr Pola and Mr Doubleday, with power reserved to Mrs Dring. Roythornes were appointed to act for Mr Pola and Mr Doubleday as executors.

Mrs Cooke herself died in November 2008. In December, Roythornes told solicitors acting for the claimants, who are Mrs Cooke's daughters and the administrators of her estate, that she "does not benefit under the estate of the late Dick Dring" and that they were therefore "instructed by the executors not to disclose the Will and Codicil as requested". In a subsequent letter, Roythornes explained that Manor Farm "is owned by Dring Bros Limited" and that "the purported gift under the Codicil dated 28 ^th October 1999 is of no effect as the deceased could not give away that which he didn't own".

Mrs Cooke's daughters responded by asserting claims against Mr Dring's estate, in particular on the basis of proprietary estoppel. In time, a compromise was achieved under which Mrs Dring varied her husband's will so that it provided for a legacy to Mrs Cooke of £300,000. In return, Mrs Cooke's daughters agreed not to make any claims against Mrs Dring, her husband's estate or Dring Bros. The agreement expressly stated, however, that the daughters were not prevented from bringing a claim against Roythornes.

All or most of Mr Dring's residuary estate, including his shares in Dring Bros, had already been distributed to his widow, on the strength of an indemnity from her. To facilitate the settlement with Mrs Cooke's daughters, Dring Bros transferred £305,000 to Roythornes, and they in turn paid £300,000 to the daughters' solicitors.

Mrs Cooke's daughters issued the present proceedings, as the administrators of their mother's estate, in 2012. Initially, Roythornes were the only defendants, it being alleged that they had acted negligently in relation to the preparation of Mr Dring's codicil. When, however, it came to be appreciated that Dring Bros' accounts had not always shown Manor Farm as an asset of the company, the proceedings were enlarged to include claims on the footing that, although the company was its legal owner, the farm was held on trust for Mr Dring absolutely. In the context of the application with which I am concerned, paragraph 17 of the Re-Amended Particulars of Claim is of particular importance. This alleges that Roythornes negligently failed to investigate the beneficial ownership of the farm. The particulars given in support of that allegation are also relied on in support of claims that Mr Pola and Mr Doubleday "failed to administer [Mr Dring's] estate in accordance with the Codicil and the law" (paragraph 23 of the Re-Amended Particulars of Claim) and that Mrs Cooke's daughters were induced to enter into the compromise agreement by representations negligently made by or on behalf of Mrs Dring (paragraph 32).

The present version of paragraph 17 of the Particulars of Claim was introduced into the pleading by amendments made in April 2014. The particulars contained in the paragraph largely concern communications between Roythornes and one or both of Mr Pola and Mr Doubleday. More specifically, they refer to what was said at a meeting between Roythornes, Mr Pola and Mr Doubleday on 23 October 2008 and during a telephone conversation between Roythornes and Mr Pola on 18 November 2008.

What is said in paragraph 17 of the Re-Amended Particulars of Claim about the 23 October meeting and the 18 November conversation is based on attendance notes made by Roythornes. Mossop & Bowser, Mrs Cooke's daughters' solicitors, were provided with a copy of the Roythornes file relating to the administration of Mr Dring's estate by Calthrops Solicitors LLP, who act for Mr Doubleday, under cover of letter dated 13 May 2013. A week or so earlier, Mossop & Bowser had written to Mr Pola inviting him to provide a full account of the facts regarding the administration of the estate. Mossop & Bowser suggested to Mr Pola in their letter that he should obtain legal advice, but he does not appear to have done so at this stage. At all events, he replied by a letter dated 15 May. In the course of that letter, Mr Pola explained that Roythornes' file gave "much clarification on the issues" and referred to, among other things, meetings that he, Roythornes and Mr Doubleday had attended in late October and early December of 2008, communications from Roythornes to the executors, advice that Roythornes gave and opinions of the executors. In the final paragraph of his letter, Mr Pola said:

"I personally have copies of all documents, emails, referenced to support all of the above. I would be more than happy to complete a Witness Statement with all of the documents attached as appendices to my Witness Statement."

Defences have been served on behalf of Roythornes; Mr Pola and Dring Bros, of which Mr Pola has now become the sole director; Mr Doubleday; and Mrs Dring (who, however, was in poor health when the Defence was prepared and who died in December 2014). Further, Mr Doubleday has made Part 20 claims against Roythornes and Dring Bros and given notice that he claims an indemnity or contribution from Mr Pola and Mrs Dring.

The Defence served on behalf of Mr Pola and Dring Bros states that the particulars under paragraph 17 of the Particulars of Claim (as re-amended) "relate to matters which are privileged in the hands of Mr Pola and Mr Doubleday as executors" and that Mr Pola and Dring Bros "will accordingly seek to have these Particulars struck out". Mr David Halpern QC, who had been instructed by Kenneth Bush Solicitors on behalf of Mr Pola, Dring Bros and Mrs Dring, had already flagged the point in a letter of 23 June 2014 to Mrs Cooke's daughters' counsel, Miss Penelope Reed QC. Mr Halpern referred in that letter to having instructions "to apply for an injunction requiring [Miss Reed's clients] and solicitors to hand over all copies of the documents and restraining [them] from relying on them in any way".

On 21 November 2014, Mr Pola issued the application that is now before me. This asks for an order "that paragraph 17 of the re-amended Particulars of Claim and the reference to paragraph 17 in paragraphs 23(8) and 32 thereof be struck out on the grounds that the same are privileged and that privilege has not been waived by [Mr Pola] and that all reference to the privilege matters in paragraph 17 be deleted from the Court file".

As matters stand, Kenneth Bush Solicitors continue to represent both Mr Pola and Dring Bros, and they have also agreed to act for Mrs Dring's executors. However, they have advised Mr Pola that he will need to find alternative representation once the present application has been determined.

Manor Farm has been sold.

The issues

The issues that arise can, I think, be conveniently addressed under the following headings:

i) Were communications between Mr Dring's executors and Roythornes privileged as against Mrs Cooke and her estate?

ii) Was privilege waived by Mr Doubleday?

iii) Was privilege waived by Mr Pola?

iv) Loss of confidentiality.

Were communications between the executors and Roythornes privileged as against Mrs Cooke and her estate?

It is well established that a trustee cannot always assert privilege against a beneficiary of the trust. Thus, in Talbot v Marshfield (1865) 2 Dr & Sm 549, while beneficiaries were denied access to advice that the trustees had received on how to defend a claim, they were held to be entitled to see advice that the trustees had taken on the exercise of a power. Kindersley V-C said (at 551):

"It was contended that [the advice on the exercise of the power] was not taken for the benefit of all the cestuis que trust; but all the cestuis que trust have an interest in the due...