Thanki, Privilege, Chapter 6

CHAPTER 6
JOINT AND COMMON INTERESTS
1. INTRODUCTION
This chapter examines how the law treats a privileged communication made by 6-001
a person or entity who enjoys some form of joint or common interest in the subject
matter of that communication when it is made contemporaneously with the exist-
ence of that interest. The chapter concludes with a brief look at successors in title
and the so-called “once privileged, always privileged” rules, which are also
concerned with the sharing of another’s privilege.1
In broad terms, where a joint or common interest is established, then privileged 6-002
communications can be shared between the parties to the shared interest without
losing the ability to assert privilege in those documents against any third party.
While there are recognised categories of joint interests, and broadly workable tests
for identifying a common interest, the real challenge in this area is to identify the
categories of relationships that entitle one party to the shared interest (be it a joint
or common interest) to demand access to a privileged communication relating to
that interest where the communication is held by one party only thereto. Where a
joint interest exists, then the right to demand such access is usually an integral part
of that relationship (albeit a right that tends to be asserted in the course of litiga-
tion between the joint interest holders and also one that is usually limited to the
period when those parties’ interests were aligned); where there is merely a com-
mon interest—or, as judges are wont to say, a “community of interest”—one has
to distinguish between the type of relationship that merely allows the sharing of
privileged material between the parties to that interest (without thereby losing the
ability to assert the privilege against third parties to their interest—this is usually
referred to as “common interest privilege”2), and one that confers the additional
entitlement that allows one party thereto to demand access to a privileged docu-
1 English law on these issues is derived from case law. It is interesting then to note that in New
Zealand, these issues are addressed in part by statute. Section 66 of the Evidence Act 2006 provides:
“(1) A person who jointly with some other person or persons has a privilege conferred by any of sec-
tions 54 to 60 and 64 in respect of a communication, information, opinion, or document— (a) is
entitled to assert the privilege against third parties; and (b) is not restricted by any of sections 54 to
60 and 64 from having access or seeking access to the privileged matter; and (c) may, on the ap-
plication of a person who has a legitimate interest in maintaining the privilege (including another
holder of the privilege), be ordered by a Judge not to disclose the privileged matter in a proceeding.”
2 It hardly needs saying that when considering privilege in the context of such interests, it should be
borne in mind that, for example, (per HHJ Parkes QC in WXY v Gewanter [2012] EWHC 1071
(QB)): “…common interest privilege is not a free-standing head of privilege but is parasitic on
orthodox legal privilege”. In other words, the communication over which the joint or common inter-
est is asserted must be one which is already covered either by advice or litigation privilege irrespec-
tive of the interest claimed over it.
[581]
ment held by the other. In the latter case, there is some confusion caused by the fact
that the case law tends to talk interchangeably of “joint interests”, “common
interests” and “a community of interests”. This makes categorisation of the case law
more challenging than perhaps it needs to be. In addition, the case law in this area
is still developing to an extent, especially in relation to common interest privilege.
This chapter attempts to identify some basic principles that can be extracted from
the case law.
6-003 With these caveats in mind then, generally, where a joint interest in the subject
matter of a privileged communication, or in the subject matter of litigation to which
it relates, is established, then these consequences will usually follow:
D first, privilege cannot be asserted by any of the parties who enjoy the joint
interest in respect of that communication against any other party thereto,
notwithstanding that all those parties are entitled to assert privilege over it
as against the rest of the world;
D secondly, a privileged communication can accordingly be shared between
the parties who enjoy the joint interest without risking their entitlement to
assert privilege in respect of that document against the rest of the world (this
is sometimes referred to as “joint privilege”)3;
D thirdly, in most cases, privilege over a communication concerned with a
joint interest can only be waived as against a third party with the agree-
ment of all the parties who enjoy that shared interest;4
D fourthly, parties who enjoy a joint interest will usually also enjoy a right of
access as against all other parties thereto in respect of a privileged com-
munication held by any other party thereto that concerns their joint interest:
that right is usually available generally and if not then always where they
are in litigation with each other;
D fifthly, where the joint interest is established, one party may be unable to
restrain his former solicitor from acting for another who shares the joint
interest, even where that solicitor is instructed to act against the first party’s
own interests.
6-004 Generally, where a common interest in the subject matter of a privileged com-
munication, or in litigation to which it relates, is established, then only some of the
consequences described in the preceding paragraph follow. Hence, it is probably the
case in relation to the third consequence that the original holder of the privilege is
entitled in most cases to waive his privilege without the need to seek the consent
of those who share his common interest, even where his privileged materials have
been shared with other common interest holders although as will be seen some
debate still exists around this. In relation to the fourth consequence, the right of ac-
cess, while this often exists alongside the right to share privileged communica-
tions, this has to be independently established: such a right of access does not ex-
ist merely as a result of a common interest that permits the sharing of privileged
3 It is also possible under English law, as frequently happens in practice, to share privileged informa-
tion by agreement with a third party, even though that third party may be unable to show he enjoys
a joint or common interest of the type considered in this chapter, without privilege thereby being
waived, so long as the privileged information is shared on a confidential basis. This situation is
covered in Ch.7, which is concerned with waiver of privilege.
4 As will be seen, this is not necessarily true of all joint interests, and so sometimes it is only the party
with whom the privileged material is shared who can be prevented (by the sharing party) from waiv-
ing the privilege: see further para.6-075 and fnn.10 and 20.
[582]
JOINT RETAINERS AND JOINT INTERESTS
materials and instead it often arises as a result of a contractual entitlement. Accord-

ingly, a key distinction is often drawn in the case law between the type of interest
that also carries with it a right of access to a privileged document that exists at the
time that document came into existence5 and one in which the nature of the relation-
ship between the parties is merely such that the parties thereto are entitled, but not
obliged, to share a privileged document between themselves without there being a
resultant loss of privilege.
For the purposes of the discussion below, a joint interest is usually one in which 6-005
two or more parties share in (and therefore require legal advice on) the same right
or interest—for example a joint or shared interest in the same property rights, such
as a trust, a will, a joint tenancy or a tenancy in common; a common interest is one
whereby two or more parties are interested in legal advice given in respect of identi-
cal or at least very similar issues, but in circumstances where their respective
interests are distinct—for example identical tenancy rights in separate flats in the
same property.6
There are three types of joint interests considered in this chapter. The first is 6-006
where the joint interest is expressly recognised by virtue of the fact the parties shar-
ing the same interest retain the same lawyer to represent them—i.e. where there is
a joint retainer. The second is where the joint interest arises by reference to the
relationship that exists between the parties thereto. Here, one also sees several
recognised categories of relationship that are accepted as giving rise to a joint inter-
est, as well as some overlap between these first two categories in that relationships
akin to a joint retainer are recognised. The third situation in which the privilege
consequences summarised above arise, while arguably not strictly a joint interest,
is in respect of a category of commercial relationships where either the nature of
the parties’ relationship or the nature of the contractual arrangements between them
entitles one party to that relationship to access privileged communications held by
the other. Here, one often sees in the case law interchangeable reference to joint and
common interests. The reality is, it is submitted, that the distinction between these
two types of interests in commercial arrangements, while often not easy to define,
in fact carry little practical consequence. Such cases are treated in this chapter
primarily as ones involving joint interests, albeit aspects of these cases are also dealt
with in Section 3 below concerned with common interests.
2. JOINT RETAINERS AND JOINT INTERESTS

Joint retainers The most easily identified relationship to which the joint inter- 6-007
est rules summarised above apply is one where two or more clients retain the same
lawyer to advise them in relation to the same matter. In such cases, the law does
not require a detailed examination of the precise nature of the joint interest, the
courts usually being satisfied that the fact of a joint instruction—in circumstances
where, after all, professional conduct rules should prevent the lawyer accepting such
an instruction if there is a risk of an actual or potential conflict of interest between
them at the point of instruction—is sufficient to bring the privilege sharing rules into
5 Per Moore-Bick J. in Commercial Union Assurance Company Plc v Mander [1996] 2 Lloyd’s Rep.
640 at 648.
6 This and other paragraphs from this section were cited by the Irish High Court in Sports Direct
International Plc v Minor [2015] IEHC 650.
[583]
play.7 So, in such cases, all of the clients to the joint retainer are entitled both to
enjoy the benefit of any privileged communication made in the course of their
retainer,8 and to have disclosed to them any such communication which may not
have been disclosed to them at the time it was made, for example, an advice from
the lawyer addressed to one only of the clients, or instructions to the lawyer given
by one of his clients alone.
6-008 The consequences of a joint retainer, so far as concerns privileged information,
were succinctly described by Rix J. in The “Sagheera”9:
“Parties who grant a joint retainer to solicitors of course retain no confidence as against
one another: if they subsequently fall out and sue one another, they cannot claim privilege.
But against all the rest of the world, they can maintain a claim to privilege for docu-
ments otherwise within the ambit of legal professional privilege; and because their
privilege is a joint one, it can only be waived jointly, and not by one party alone.”10 11
6-009 In The “Sagheera”, the joint retainer arose because vessel owners and their war
risk underwriters both needed to investigate the circumstances in which the insured
vessel sank, for which purpose they jointly retained the same firm of solicitors. Both
clients were able to enjoy the benefits of advice and litigation privileges attaching
to qualifying communications made during the course of their joint retainer of the
firm concerned. Consequently, both could assert the privileges attaching to such
communications in subsequent litigation with the vessel’s hull and machinery
underwriters.12
6-010 A more common example of a joint retainer is where a husband and wife jointly
7 As will be seen, the ability to instruct the same lawyer was once seen as an essential element of the
availability of common interest privilege, a requirement which has since fallen away.
8 See, for example, Rochefocauld v Boustead (1896) 65 LJ Ch. 794.
9 [1997] 1 Lloyd’s Rep. 160 at 165–166. This passage was cited with approval in the New South Wales
Supreme Court decision of Doran Constructions Pty Ltd (in liquidation) [2002] NSWSC 215.
10 See also Rochefocauld v Boustead (1896) 65 LJ Ch 794, Minter v Priest [1930] A.C. 558, CIA Barca
de Panama SA v George Wimpey & Co Ltd [1980] 1 Lloyd’s Rep. 598 and BBGP Managing General
Partner v Babcock & Brown Global Partners [2010] EWHC 2176 (Ch). Waiver of privilege is
covered in Ch.7. In Birdseye and Cooke v Roythorne & Co [2015] EWHC 1003 (Ch), Newey J. held
that where one of two executors had disclosed the contents of their solicitors’ file to the claimants’
solicitors, the usual rule that parties to a joint retainer of solicitors could not waive privilege individu-
ally did not apply because of the general rule that the act of one of joint representatives is regarded
as the act of all and is binding—as in Fountain Forestry Limited v Edwards [1975] Ch. 1.
11 In Australia, see for example Farrow Mortgage Services Pty Ltd (in Liq) v Webb (1996) 39
N.S.W.L.R. 601 where the Court said at 608: “Two or more persons may join in communicating with
a legal adviser for the purpose of retaining his or her services or obtaining his or her advice. The
privilege which protects these communications from disclosure belongs to all the persons who joined
in seeking the service or obtaining the advice. The privilege is a joint privilege. So is it also if one
of a group of persons in a formal legal relationship communicates with a legal adviser about a mat-
ter in which the members of the group share an interest. Communications by one partner about the
affairs of the partnership or a trustee about the affairs of the trust are examples. Implicit in the
relationship is the duty or obligation to disclose to other parties thereto the content of the
communication. Accordingly no privilege attaches to such communications as against others who,
with the client, share an interest in the subject matter of communication. …But the parties together
are entitled to maintain the privilege ‘against the rest of the world’…”.
12 As Rix J. further noted, there is no need to invoke common interest privilege in circumstances where
both claimants shared a joint retainer of common solicitors and where they could jointly rely on legal
advice and litigation privilege in that context. He added ([1997] 1 Lloyd’s Rep. 160 at 167): “It may
be that common interest privilege would be necessary where, for instance, common solicitors were
separately retained, or where the parties might have been but were not in fact, advised by the same
solicitors, or where only one of the solicitors sued.”
[584]
instruct a solicitor in relation to a property transaction. In the event of proceedings

between them, neither can claim privilege over any communication made in the
course of their joint retainer: see Re Konigsberg (a bankrupt), Ex p. the Trustee v
Konigsberg.13
Despite the existence of a joint retainer, it is possible for one of the clients to 6-011
consult the common lawyer on an individual basis on the subject matter of the
retainer and in circumstances where their communications are privileged as against
the other parties to the joint retainer. This is so even though the lawyer is likely to
be subject to a conflict of interest. The existence of the conflict apparently does not
prevent the separate privilege arising: see, for example, the New Zealand Court of
Appeal’s decision in Morgan & Banks Ltd v S Sullivan.14 In this regard, it should
be noted that a joint retainer should be distinguished from the employment of a
common solicitor who advises more than one client in their separate capacities, as
where the vendor and purchaser of the same property employ the same solicitor.15
In Goddard v Nationwide Building Society,16 Court of Appeal was concerned with
a solicitor acting for both the purchasers and the Building Society in the purchase
of property who took a note of something that was said by one of the purchasers.
The note was subsequently disclosed to the Building Society who wished to deploy
it in its defence to a claim for negligence on the part of its surveyor. The Court was
clear that, in the light of the way in which the document came into existence, the
only legal professional privilege was that of the purchasers.
In Kousouros v O’Halloran,17 the converse situation arose in that privileged com- 6-012
munications made before a joint interest came into existence did not lose their
confidentiality as between the joint interest holders because their joint interest arose
13 [1989] 1 W.L.R. 1257. No doubt the situation is the same where the solicitor is jointly instructed
by cohabitees. Re Konigsberg was held to have been wrongly decided by the Court of Appeal in
Shlosberg v Avonwick Holdings Ltd [2016] EWCA Civ 1138; [2017] Ch. 210 in so far as it held that
the husband’s privilege devolved to his trustee in bankruptcy: see Section 4 below.
14 [2000] NZCA 390. See also Harris v Harris [1931] P. 10, where a solicitor was separately consulted
by a husband and wife about their marital differences. The husband’s attempt to call the solicitor to
prove an admission of adultery made by the wife was refused on the ground that the occasion of the
alleged admission was made pursuant to a separate solicitor-client relationship. In contrast, note Nor-
ris J. in BBGP Managing General Partner Ltd v Babcock & Brown Global Partners [2010] EWHC
2176 (Ch); [2011] Ch. 296 who said at 315, [52]: “I consider that the authorities establish that where
a solicitor accepts a joint retainer from parties with potentially conflicting interests one client can-
not insist as against the other that legal professional privilege attaches to any of what passes between
the solicitor and that client during the currency and in the course of the retainer: Baugh v Cradocke
(1832) 1 Mood & R 182; Perry v Smith (1842) 9 M & W 681; Shore v Bedford (1843) 5 Man & G
271; Ross v Gibbs (1869) LR 8 Eq 522 and Re Konigsberg [1989] 1 W.L.R. 1257.”
15 It has been said that where lender and borrower instruct the same solicitor, there is no joint retainer
but a several retainer – per Horner J. in Pepper (UK) Ltd (t/a Engage Credit) v Fox [2016] NICh 1;
[2016] P.N.L.R.27 at [20]: “… in such a case there is no implied waiver of confidentiality or privilege
by one party in favour of the other, or any implied authorisation by the solicitor to make disclosure
to one party of documents passed between the solicitor and the other party …”. However, such is-
sues are often circumvented by contractual arrangements between borrower and lender: see for
example Mortgage Express v Sawali [2010] EWHC 3054 (Ch); [2011] P.N.L.R. discussed in Ch.7.
An old case concerned with the retainer of the same solicitor in a conveyancing context is revealing.
In Perry v Smith (1842) 9 M&W 681, a lawyer was jointly instructed by vendor and purchaser. The
latter told the lawyer he would not have the purchase money ready to complete and objected to
evidence of this conversation being given in subsequent proceedings. Parke B. held that their com-
munication was made in his adverse character of attorney for the vendor and therefore he stood in
the character of an ordinary witness.
16 [1987] Q.B. 670.
17 [2014] EWHC 2294 (Ch).
[585]
at a later date. Here, a brother and sister disputed the disposition of their late father’s
house. The brother claimed that it had been transferred to him inter vivos under an
oral agreement; whereas the daughter claimed that she had been left a half share by
her father’s later will. The daughter instructed a solicitor, H, who acted on her behalf
to obtain her share of the estate and on behalf of the executor to administer the
estate. When the brother disputed the entitlement of the estate to claim the property,
H ceased to act for the daughter because of the obvious conflict of interest. In the
brother’s subsequent claim, seeking declarations that he was entitled to the entire
beneficial interest of his father’s property, a dispute arose as to the disclosure of two
letters written by H at the time when he acted for the sister as a beneficiary under
her father’s will in which he referred to the fact that the IHT had been paid under a
mistaken belief that the property formed part of the father’s estate. The source of
this reference was information that the solicitor had received from the daughter at
the time when he acted for her in relation to her claim as a beneficiary under the
father’s will. Questions arose as to the brother’s entitlement to see his sister’s
instructions to the solicitor—by which he sought to undermine her credibility—on
the basis that they both had a joint interest under the will.
6-013 The county court judge had held that there was a joint retainer, on behalf of the
sister to obtain her share of the estate and on behalf of the executor to administer
the estate. The brother therefore had a joint interest in the subject matter of com-
munications about the administration of the estate and thus a joint privilege in com-
munications which came into existence while H was acting on behalf of the
executor. The sister could not therefore assert privilege as against her brother while
that joint interest continued. Simon J. disagreed:
“Whilst I agree that the [brother] and the [sister] had a joint interest as beneficiaries under
the will in ensuring that it was properly administered…I do not accept that the
consequence was that the [sister] was unable to maintain the legal advice privilege in rela-
tion to her original instructions to [H] and in relation to the advice she received.”18
Noting that the joint interest must exist at the time that the communications which
are in issue come into existence and that the communications must have come into
being for the furtherance of the joint interest, here, the privileged information came
into existence prior to H having any role in the administration of the estate. Accord-
ingly, there being no question of a joint interest with anyone else, the sister was
entitled to unburden herself to her legal advisor without reserve and on the basis
that he would be able to give her honest and candid advice, without fear that the
opposing party might rely on the communications if a dispute came before the Court
for decision.19
6-014 Identifying joint interest relationships Similar consequences ought to follow

with respect to the treatment of a privileged communication where a joint interest
is established in the subject matter of that communication, even though one only
of the parties to the joint interest may have instructed a lawyer to advise him: the
absence of a joint retainer, even if there could have been one, being irrelevant to
the existence of the joint interest. Once a joint interest is established, then all the
parties to that joint interest will have a right of access in litigation between them
to each other’s privileged communications relating to the subject matter of the joint
18 [2014] EWHC 2294 (Ch) at [52].

19 [2014] EWHC 2294 (Ch) at [58].
[586]
interest, so long as the communications occurred while that interest subsisted; in

addition, all will be entitled to assert privilege over those communications, as
against persons not party to the joint interest, once they have obtained access to
them. While in many situations they will all be obliged to assert privilege unless
they all jointly agree to waive it, there are some situations where this may not be
so, as discussed below.20
There are many ways in which a joint interest can be established for the purposes 6-015
of sharing privileged material. Sometimes, a joint interest will be found in a
relationship akin to a joint retainer, so that the lawyer is entitled or even obliged to
share privileged communications with his client with the joint interest holder. In
most cases, the lawyer’s retainer letter should make clear whether or not he is act-
ing pursuant to a formal joint retainer on behalf of two or more clients who share
a joint interest. But this does not always happen, and disputes arise as to whether
the scope of a lawyer’s retainer, even though not formally documented, entitles oth-
ers beyond the named client to share in the client’s privilege. Ultimately, the courts
have to undertake a factual enquiry to determine whether a joint interest exists. In
R. (on the application of Ford) v Financial Services Authority Burnett J. said:
“The circumstances in which joint privilege may arise are legion. In corporate bodies with
a tight controlling management the legal interests of the company and its directors and
senior employees will often coincide or overlap. This case arises in the context of financial
regulation, yet very similar considerations might arise in other regulatory environments.
For example, the possibility of regulatory action in the health and safety or environmental
fields often engages legal questions for companies and potentially their directors
personally. Public bodies take legal advice in contexts which engage the potential li-
abilities of officials and elected representatives. Corporate bodies seeking advice in con-
nection with public inquiries may sweep within the ambit of the advice the conduct of their
staff. The lawyers concerned may represent and advise the individuals or they may be
separately advised. Examples could be multiplied. In the ordinary course one would expect
the lawyers concerned to establish with clarity the identities of the persons to whom they
are giving advice, not least because they owe professional duties to clients, which affect
the nature and extent of their legal liabilities. Best practice would suggest that the retainer
letter should make clear whether advice was being given to a corporate body alone or also
to a number of identifiable directors or employees. If the position evolves after the initial
engagement, best practice would suggest that any change is recorded. That course is likely
to avoid a costly dispute of the nature that has erupted in this case. However, in the
absence of a formal joint retainer or a clear contemporary record of the scope of the advice
being given, a dispute about whether there was joint privilege requires a factual inquiry
to determine the true position at the material time.”21
So, in Love v Fawcett, Morgan J. rejected the argument that there was a joint 6-016
retainer. In order to determine whether there was, instead, a joint interest, he focused
on identifying:
“…when a communication between [the solicitor] and [Party A] is confidential to those
20 Simon J. in Kousouros v O’Halloran [2014] EWHC 2294 (Ch) noted a comment in Thanki on the
Law of Privilege, 2nd edn at para.6:08 that: “It is questionable, for example, whether a client is neces-
sarily precluded from waiving privilege in advice he has obtained simply because someone else (of
necessity a stranger to the relevant lawyer-client relationship) can assert a joint interest in the advice.”
Simon J. then noted (at [55]): “…it remains unclear whether a client is necessarily prevented from
asserting privilege in advice he has obtained simply because someone else, who was not a party to
the original lawyer-client relationship, can assert a joint interest in the advice.”
21 [2011] EWHC 2583 (Admin) at [39].
[587]
two and when it is not confidential so that (in the latter case) [the solicitor] is entitled to
pass the information in question onto [Party B] and indeed [B] is entitled to have access
to the matter communicated.”22
Morgan J. found that a joint interest existed which arose from B’s strong prima
facie case of entitlement to a share in the fruits of a building development with A.
The solicitor in this case had been instructed in relation to a proposed letting and
proposed sale of a reversionary interest which were for the purpose of realising the
fruits of the development. Relevant to the judge’s findings in favour of a joint inter-
est were B’s day-to-day involvement in dealing with the proposed sale and letting,
instructing the solicitor on behalf of A, and the fact that the burden of the solicitor’s
charges were expected to fall on B. Morgan J. concluded:
“…although the precise line drawn by the authorities between cases of joint interest and
other cases is not made wholly clear, I find that the facts of this case place this case on
the side of the line where I should recognise the existence of a joint interest of [B] and
[A] in relation to instructing the solicitor in respect of the letting and the sale of the
development.”23
6-017 In Twin Benefits Ltd v Barker,24 the claimant sought third party disclosure pursu-
ant to CPR 31.17 from a solicitor, M, who had acted as litigation friend to a minor
(“E”) in an earlier action in which E had been appointed to represent a class of
beneficiaries of a trust which included E’s half-siblings, T and F, also minors. It was
common ground that the various classes of documents of which disclosure was
sought were subject to privilege. The solicitor disputed that there was a joint retainer
between the three minors but conceded for the purposes of the application that there
was a common interest between E on the one hand and the other members of the
class, and in particular T and F, on the other hand such that they were jointly entitled
to the privilege. However, Arnold J. held that, given that concession:
“…it is common ground that (a) [E] cannot rely upon LPP to deny [T] and [F] (or Twin
Benefits as their successor in title) inspection of the documents, but (b) [T] and [F] (and
Twin Benefits) cannot waive LPP so as to permit inspection of the documents by the
Defendants without [E]’s consent. M has consulted [E]’s mother, who does not consider
that it would be in [E]’s best interests to waive LPP. Although it would be open to M, as
[E]’s litigation friend, to take a different view as to [E]’s best interests, she does not. At
this stage, Twin Benefits does not challenge M’s view. It follows that LPP would not
prevent Twin Benefits from inspecting these documents, but prima facie it would prevent
Twin Benefits from deploying the documents as part of its case in these proceedings.25
6-018 On rare occasions, the lawyer’s retainer letter will only name one client, but other
parties assert that they too were being advised by the same lawyer on the same
22 [2011] EWHC 1686 (Ch) at [18].

23 [2011] EWHC 1686 at [19]. In contrast with this finding, Morgan J. also held that other aspects of
the solicitor’s retainer, in relation to communications concerning A’s financial dealings, involved
competing interests that were not compatible with a joint interest and which the solicitor was
therefore expected to keep confidential to A.
24 [2017] EWHC 177 (Ch). The case is further discussed in relation to waiver of a common interest
privilege below.
25 [2017] EWHC 177 (Ch) at [31]–[32]. Although it did not arise for decision, Arnold J. said at [34]:
“My starting point, however, would be that I cannot at the moment see why it would not be open
for one joint beneficiary of LPP to rely upon the improper purpose rule to defeat another joint
beneficiary’s claim to enforce LPP.”
[588]
subject matter—as Burnett J. noted in his judgment in Ford, just quoted. While one
would expect the retainer letter to be determinative, disputes can still arise,
especially if a matter evolves and the retainer letter is not kept up to date so as
formally to record the fact that the retainer has expanded. Surprisingly, the criteria
by which a joint interest is established in these circumstances was not considered
by an English court until 2011, in the Ford decision itself.26 Here, a company K was
investigated by the FSA. It went into administration. The FSA was subsequently
provided with emails and attachments by K’s administrators, who waived the
company’s privilege. The FSA relied upon the content of those documents’ attach-
ments in formal investigation reports and warning notices served on three of K’s
executives. The executives asserted that they enjoyed a joint privilege with K over
certain documents made available to the FSA, because K’s lawyers prior to
administration also advised them individually. The administrators did not (because
they could not) waive any privilege the executives enjoyed; and the FSA did not
investigate with the executives whether they had privilege in the documents before
they used them.27 Accordingly, the executives contended that the FSA had acted
unlawfully in using material that was in fact subject to legal professional privilege.
Burnett J. therefore had to decide whether the executives could assert a joint
privilege over the documents concerned (there being no retainer letter with K’s
solicitors that mentioned the executives as being their clients as well) and in
particular whether, as they contended, the solicitors advised them as individuals and
not simply as directors and officers of K. As to this, they asserted that there was a
common understanding that the advice was personal as well as corporate.
Rejecting the competing tests advanced by the parties, Burnett J. considered that 6-019
the starting point must be the underlying policy considerations which lead to
confidential communications with lawyers being accorded protection from
disclosure:
“…it is clear that for legal advice privilege to be established the person claiming privilege
must have the relationship of client with the lawyer concerned. The communications
claimed as privileged must be confidential. The question of privilege must be determined
by reference to the circumstances which obtained at the time of the communication. …The
same principles apply to joint legal privilege but because the interests of persons other than
the individual claiming privilege are in play their position must be taken into account when
determining whether the joint privilege exists. I do not accept that the test whether the
individual concerned ‘reasonably believed that he was the client of the lawyer’ provides
a satisfactory test for joint interest privilege. It begs too many questions. Is it to be judged
subjectively or objectively? And what are the factors which must be established before a
belief can be reasonable? Does the belief have to be shared by the others entitled to joint
privilege and by the lawyers? I do not accept the defendant’s submission that the American
approach should be adopted in this jurisdiction, that is to say that once lawyers have been
26 R. (on the application of Ford) v Financial Services Authority [2011] EWHC 2583 (Admin). For a
New South Wales decision that considered the position of lot owners and the land-owning corpora-
tion under the Strata Schemes Management Act, see Eastmark Holdings Pty Limited v Kabraji (No.3)
[2012] NSWSC 1462, which contains a detailed analysis of joint and common interest privileges.
27 This led the judge to suggest ([2011] EWHC 2583 at [13]) that: “Questions relating to joint interest
privilege are likely to arise commonly in connection with relatively tightly controlled companies
where the directors and the company are in reality one and the same. It is desirable that any potential
dispute about privilege should be resolved before the material is considered by investigators and
relied upon in the course of regulatory activity. For that reason the FSA might usefully review what
is done by the Serious Fraud Office and Police to deal with potentially legally privileged material
to determine whether similar practices might be adopted.”
[589]
retained by a corporation, officers of that corporation cannot prevent it waiving privilege

on advice concerning its affairs or those of its officers, even if the personal affairs of the
officers are inextricably intertwined and they were in fact being given advice at the same
time. …In searching for the true factual position at the time that the contentious com-
munication was made it is necessary to distinguish between advice being given to an
individual as client from advice which is being given to another, but in which the first
individual is interested because it impacts upon his personal position. It is the former that
supports a claim for joint privilege, not the latter. It is also necessary to recognise that if
joint privilege exists it affects the rights of all those who share that joint privilege and also
the professional obligations of the lawyers. For this reason, statements of subjective belief
by an individual claiming joint privilege without more are likely to be of little value. Joint
privilege should not arise casually or accidentally. For joint privilege to arise it is neces-
sary for the facts to demonstrate that all those sharing the privilege and the lawyers
concerned knew, or from the objective evidence ought to have known, that they enjoyed
legal professional privilege with the others.”28
6-020 In the result, he formulated this test for an individual to meet when claiming joint
privilege with others in a communication with a lawyer, when there is no joint
retainer:
“i) That he communicated with the lawyer for the purpose of seeking advice in an
individual capacity; ii) That he made clear to the lawyer that he was seeking legal advice
in an individual capacity, rather than only as a representative of a corporate body; iii) That
those with whom the joint privilege was claimed knew or ought to have appreciated the
legal position; iv) That the lawyer knew or ought to have appreciated that he was com-
municating with the individual in that individual capacity; v) That the communication with
the lawyer was confidential.”29
6-021 Recognised joint interest relationships In other situations, there are recognised
relationships which can give rise to a joint interest. Here, some of the case law dates
from the 19th century. The more common of these relationships are those between
trustee (including personal representatives under a will) and beneficiary, a company
and its shareholders, and the partners of a formal partnership. Each of these relation-
ships will be considered in turn.
6-022 Trustees and beneficiaries Although some qualification of the general rules
noted in para.6-003 above is needed, it is clear enough that otherwise beneficiar-
ies have a sufficient interest in certain types of documents generated or acquired by
28 [2011] EWHC 2583 at [37]–[40]. The judge added that: “Evidence of an understanding by the lawyer
of potential conflicts of interest may provide some evidential support for joint privilege, but it is not
a necessary ingredient. It is not unknown for conflicts of interest to arise but those advising to be
slow to appreciate their significance.”
29 [2011] EWHC 2583 at [37]–[40]. On the detailed facts of this case, the judge held there was a joint
retainer. The FSA invited the rejection of the evidence on behalf of the executives to the effect that
there was an understanding that the solicitors were also advising them. Crucially, the FSA did not
seek to cross-examine on this point even though the position of the FSA was that at no time were
the solicitors giving advice to the executives as individuals despite the evidence before the court.
Burnett J. held ([2011] EWHC 2583 at [62]–[63]) that before he could properly reject that evidence,
“…fairness would require that [the witnesses] be cross examined and given an opportunity to deal
with the suggestion that their accounts were either inaccurate (if honestly given) or fabricated. Whilst
I accept that when the engagement letter was drafted its content suggests that on 7 January 2008 [the
solicitors] understood [themselves] to be instructed on behalf of [K] alone (albeit that the execu-
tives may have believed the instructions to have been wider from the outset), the evidence of the
executives is unequivocally to the effect that [the solicitors] soon became involved in advising them
personally…My conclusion is that each of the criteria I have identified…was satisfied…”.
[590]
their trustees such that privilege in them is no answer to their entitlement to their
disclosure, at least in litigation between them and provided that the privileged docu-
ments do not relate to the substance of their dispute with their trustees. Whatever
the precise nature of the beneficiaries’ interest in this regard, and while it may not
have been so described expressly in the case law, it is usually regarded as a form
of joint interest or joint privilege with the trustees, derived from the fact that the
documents concerned are trust documents ultimately owned by the beneficiaries—
it has not been regarded as a type of relationship where the common interest
privilege rules need to come into play.30 31
One of the earliest decisions on joint interests and privilege is Talbot v 6-023
Marshfield,32 where the question arose whether, in litigation between beneficiaries
and the trustees of a will, the beneficiaries were entitled to see two confidential
opinions which the trustees had obtained from counsel. The answer depended on
whether there was an identity of interest between the parties at the time the opinions
were taken.33 As to the first opinion, this concerned the exercise of a testamentary
power vested in the trustees in favour of certain beneficiaries only. This opinion was
taken before the litigation brought by the other beneficiaries, who sought to restrain
the exercise of that power, had been threatened. So, it was taken in relation to the
trust, and not the litigation. Accordingly, Sir RT Kindersley VC held that all the
beneficiaries had a right to see that opinion (and also because it had been paid for
out of the trust estate). As for the second opinion (which had not been paid for out
of trust funds), which was taken after the action had commenced, its purpose was
not to guide the trustees in the execution of the trust, but to advise them how to
30 For a most recent decision to this effect, see Dawson-Damer v Taylor Wessing LLP [2019] EWHC
1258 (Ch). Steen and Lilly in “It’s a real privilege: common interest in trust disputes” (2013) 19(1)
Trusts and Trustees 68–78 advanced the argument that the process of sharing privileged docu-
ments as between trustee and beneficiary should fall within the scope of common interest privilege.
This is with respect misguided. The ability of a beneficiary to seek privileged materials from their
trustees has existed for a very long time, since well before the modern revival of common interest
privilege in 1981, as traced in Section 3 below. While the article makes some valid points as to dif-
ficulties in the way of the beneficiary’s entitlement to such documents in the wake of Schmidt v
Rosewood Trust Ltd [2003] UKPC 26; [2003] 2 A.C. 709, also discussed below, applying common
interest privilege to address the particular mischief the subject of the article, namely sharing trust
documents in a way that preserves privilege in the hands of the beneficiary, is unnecessarily
complicated. Aside from the joint interest principles discussed in the text next, a mere confidential
sharing of such materials would be enough to ensure privilege is preserved in such situations: see
generally Ch.7.
31 Another commentator, O’Loughlin, “It’s a privilege” (2014) 21(4) Trusts and Trustees 358–370, also
rejects the argument that the relationship between trustee and beneficiary for the purposes of privilege
and disclosure is that of “joint privilege” or “joint retainer”. Instead he argues that because of a
trustee’s duty to account to the beneficiary in relation to a trust, there is normally no confidentiality
between them in relation to trust affairs. Therefore, in the absence of that confidentiality there is no
privilege and this is the true explanation for the principle that the trustee cannot assert privilege
against the beneficiary. This is not, with respect, an approach to this issue that the courts have
formulated. Ultimately, labels may not matter so long as the parameters of the beneficiary’s entitle-
ment to access privileged material in litigation are understood.
32 (1865) 2 Drew & Sm 549. The same principles apply to beneficiaries and their interest in the estate
of a deceased.
33 In Commercial Union & Assurance Co v Mander (1996) 1 Lloyd’s Rep. 640 at 648, Moore-Bick J.
held that the party who applies for discovery of his opponent’s privileged materials: “…must be able
to establish a right to obtain access to them by reason of a common interest in their subject matter
which existed at the time the advice was sought or the documents were obtained”. This decision is
discussed further below.
[591]
defeat the proceedings. This was therefore privileged as against the beneficiaries
who had brought the proceedings against them.34 35 36
6-024 In O’Rourke v Darbishire, Lord Wrenbury suggested that the beneficiary’s
entitlement to access to such documents was a general one, independent of the exist-
ence of an action in which discovery would have to be given. He said:
“If the plaintiff is right in saying that he is a beneficiary and if the documents are docu-
ments belonging to the executors as executors, he has a right to access to the documents
which he desires to inspect upon what has been called in the judgments in this case a
proprietary right. The beneficiary is entitled to see all the trust documents because they
are trust documents and because he is a beneficiary. They are in a sense his own. Action
or no action, he is entitled to access to them. This has nothing to do with discovery. The
right to discovery is a right to see someone else’s documents. A proprietary right is a right
to access to documents which are your own. No question of professional privilege arises
in such a case. Documents containing professional advice taken by the executors as
trustees contain advice taken by trustees for their cestuis que trust, and the beneficiaries
are entitled to see them because they are beneficiaries.”37
34 The Vice-Chancellor also held that the beneficiaries had a right to see the first opinion because it
had been properly paid for out of the trust estate. Had the beneficiaries been able to show that the
trustees paid for the second opinion out of trust funds, the Vice-Chancellor appeared to suggest that
they might have had the right to see it. See also Harman L.J. in Re Londonderry’s Settlement [1965]
Ch. 918, considered below; and Blades v Isaac [2016] EWHC 601 (Ch), where the court said at [51]:
“The opinion had been obtained by the defendants as trustees, for the benefit of the trust rather than
for their benefit personally, and therefore it was proper for them to pay for it from trust funds. But
the corollary of this was that it was a trust document, and therefore in the same category as other
trust documents, that is, available to the beneficiaries if the court so considered. In relation to such
documents, there can be no legal professional privilege as between trustee and beneficiary.”
Similarly, in Lewis v Tamplin [2018] EWHC 777 (Ch), the court noted at [59]: “…There is a clear
distinction to make. In general, where trustees seek legal advice for the benefit of themselves person-
ally, eg in relation to possible breach of trust liability, or of another trust of which they are trustees,
and pay for it themselves, or out of the funds of that other trust, without recourse to the funds of the
Tamplin Trust, that advice may well be privileged in favour of those trustees as against these
beneficiaries. But, where the advice is sought for the benefit of the Tamplin Trust as a whole, and
the trustees pay for that advice out of Tamplin Trust funds, then such advice, even though it may be
privileged as against third parties, is not privileged as against the beneficiaries, and is liable to be
ordered to be produced.”
35 The need for the privileged opinion to have been paid for out of trust funds in order for it to be
disclosable to the beneficiaries also features, by analogy, in shareholder-company litigation, where
it has been said that a legal opinion paid for out of company funds would be disclosable to the
shareholder: see Woodhouse & Co (Ltd) v Woodhouse (1914) 30 T.L.R. 559, followed in W Dennis
& Sons Ltd v West Norfolk Farmers’ Manure and Chemical Co-op Ltd [1943] Ch. 220 and Re
Hydrosan Ltd [1991] B.C.L.C. 418. These cases are discussed below.
36 In Saltri III Ltd v MD Mezzanine SA [2012] EWHC 1270 (Comm), the court was concerned with
the financial restructuring of a group of companies whose lenders’ rights were regulated under the
terms of an Inter-Creditor Agreement that provided, inter alia, for the appointment of a Security
Trustee to hold and enforce certain security. In subsequent proceedings the issue arose as to whether
the Security Trustee could assert privilege against the lenders. Hamblen J. held (at [94]) that the role
of the Security Trustee in relation to “the method, type and timing of enforcement or of the exploita-
tion, management or realisation of any Transaction Security” was not a role that is sufficiently
analogous to that of a trustee for the “trustee rule” to apply. That must depend on the nature of the
role undertaken rather than any label which may be attached to it. To put the matter another way, in
performing that role there was not a sufficient joint interest in any legal advice obtained for joint
interest privilege to apply.
37 [1920] A.C. 581 at 627. See also Lord Parmoor at 619: “A cestui que trust, in an action against his
trustees, is generally entitled to the production for inspection of all documents relating to the af-
fairs of the trust. It is not material for the present purpose whether this right is to be regarded as a
[592]
However, the courts have clearly moved away from this broad position. Although 6-025
the Court of Appeal in Re Londonderry’s Settlement explained Talbot v Marshfield
on the basis that the opinion that was disclosed to the beneficiaries in that case was
a trust paper paid for out of trust funds and was the property of the beneficiaries,
Harman L.J. made clear that the beneficiary’s entitlement was dependent upon
determining what trust papers actually comprise; further, that absent an action
impugning the trustees’ good faith, a beneficiary is not entitled to documents that
bear on the exercise of the trustees’ discretion, since these are matters that the
trustees are not bound to disclose. 38 However, Salmon L.J. in Londonderry
confirmed that the extent of the beneficiary’s entitlement to access to trust docu-
ments, including relevant privileged documents, is wider where there is litigation
between trustee and beneficiary:
“The position is quite different where the beneficiary seeks disclosure of documents from
the trustees in the air…from the position where the beneficiary seeks discovery of docu-
ments in an action in which allegations are being made against the bona fides of the
trustees. If the documents in question are in the possession or power of the trustees and
are relevant to the issues in the action, they must be disclosed whether or not they are
trustee documents. In some instances…the fact that they are trust documents may nul-
lify the privilege that would otherwise exist, as for example if the document consists of
counsel’s opinion taken before the issue of the writ, clearly the beneficiary is entitled to
see any opinion taken on behalf of the trust.”39
To the extent, however, that the beneficiary’s entitlement may have been depend- 6-026
ent on a proprietary right, the Privy Council in Schmidt v Rosewood Trust Ltd,40 an
appeal from the Isle of Man, has since held that the right to seek disclosure of trust
documents should be regarded as an aspect of the court’s inherent jurisdiction to
supervise, and if necessary to intervene in, the administration of a trust. While this
means that there is no distinction between the entitlement of a vested beneficiary
and one with a discretionary beneficial interest to have access to trust documents,
it also meant:
“…that no beneficiary (and least of all a discretionary object) has any entitlement as of
right to disclosure of anything which can plausibly be described as a trust document.
…Especially when there are issues as to personal or commercial confidentiality, the court
may have to balance the competing interest of different beneficiaries, the trustees
themselves, and third parties. Disclosure may have to be limited and safeguards may have
to be put in place. Evaluation of the claims of a beneficiary (and especially of a discretion-
paramount proprietary right in the cestui que trust, or as a right to be enforced under the law of
discovery.” Harman L.J. in the Londonderry decision discussed next thought these were all “general
observations” that gave “little guidance”: [1965] 1 Ch. 918 at 932; and Lord Walker of Gestingthorpe
in the Schmidt decision noted in the text thereafter commented ([2003] UKPC 26; [2003] 2 A.C. 709
at [50]): “…The Board does not find it surprising that Lord Wrenbury’s observations have been so
often cited, since they are a vivid expression of the basic distinction between the right of a beneficiary
arising under the law of trusts (which most would regard as part of the law of property) and the right
of a litigant to disclosure of his opponent’s documents (which is part of the law of procedure and
evidence). But the Board cannot regard it as a reasoned or binding decision that a beneficiary’s right
or claim to disclosure of trust documents or information must always have the proprietary basis of
a transmissible interest in trust property. That was not an issue in O’Rourke v Darbishire.”
38 Per Harman L.J., [1965] 1 Ch. 918 at 932.
39 [1965] Ch. 918 at 938.
40 [2003] UKPC 26; [2003] 2 A.C. 709.
[593]
ary object) may be an important part of the balancing exercise which the court has to
perform on the material placed before it.”41
6-027 The decision in Schmidt was not in any way concerned with and so, it is submit-
ted, does not directly affect the privilege position when a beneficiary seeks access
to trust documents in litigation. Although the decision brings to bear a different ap-
proach to access requests by introducing a judicial discretion as to whether
particular documents should be disclosed by the trustees to the beneficiary,42 what
it does not do is undermine such rights as the beneficiary has where such docu-
ments are privileged. This would seem to be supported by the fact that the Privy
Council expressed general agreement43 with the approach adopted by the New
South Wales Court of Appeal in Hartigan Nominees Pty Ltd v Rydge where the
Court approved the view44 that the beneficiary’s rights to inspect trust documents
are founded not upon any equitable proprietary right which he or she may have in
respect of those documents, but upon the trustee’s fiduciary duty to keep the
beneficiary informed and to render accounts.45
6-028 But another Australian court, while expressing doubt about the legitimacy of the
Rosewood discretionary approach, suggested otherwise when it observed:
“One difficulty with such an approach is that a trustee’s right to withhold a document on
41 [2003] UKPC 26; [2003] 2 A.C. 709 at 734–735, [67], per Lord Walker of Gestingthorpe. Arden
L.J.’s judgment in Dawson-Damer v Taylor Wessing LLP (Information Commissioner intervening)
[2017] EWCA Civ 74; [2017] 1 W.L.R. 3255 contains some interesting observations on how Lord
Walker’s analysis in the Schmidt case avoids some of the difficulties that emerge from Re Londonder-
ry’s Settlement [1965] Ch. 918.
42 See Breakspear v Ackland [2008] EWHC 220 (Ch); [2009] Ch. 32; [2008] 3 W.L.R. 698, where
Briggs J. noted at [3] that “the relatively settled state of the law with regard to the identity and
disclosure to beneficiaries of trust documents has been substantially re-cast, so far as concerns the
underlying principles, by the decision of the Privy Council in Schmidt v Rosewood Trust Ltd…in a
manner at least partially at variance with dicta in O’Rourke v Darbishire…and Re Londonderry’s
Settlement…”. Briggs J. held (at [52]) that it was appropriate even in the light of Londonderry and
O’Rourke v Darbishire to hold that the basis upon which trustees and the court should approach a
request for disclosure of a wish letter (or of any other document in the possession of trustees in their
capacity as such) is one calling for the exercise of discretion rather than the adjudication upon a
proprietary right. His review of the authorities demonstrated that there is now near unanimity in the
relevant common law jurisdictions to that effect—see for example in Hong Kong in Tam Mei Kam
v HSBC International Trustee Ltd [2011] HKCFA 34; FACV11/2010. Note that one New South
Wales Supreme Court decision has refused to follow Rosewood. In McDonald v Ellis [2007] NSWSC
1068, Bryson A.J. observed at [48]–[51]: “The views expressed in Schmidt…while they should be
considered with respect, are not possibly a binding or authoritative source for a rule of law which
would render the entitlement of the plaintiff in these proceedings to access the documents, to
information, in short to accounts, a discretionary one…The opinion of Lord Walker does not to my
reading identify any error in earlier opinion, or state any respect in which it might be said to be
significantly unsatisfactory. No earlier judicial decisions adopting the basis on which the Privy
Council reset the law were referred to, nor were any text writers.” In reaching this conclusion, Bryson
J.A. disagreed with the slightly earlier decision of Avanes v Marshall [2007] NSWSC 191 which
accepted that Rosewood should be followed, as did Silkman, Dorise Enid v Shakespeare Haney
Securities Ltd (ACN 087 435 783) in its capacity as responsible entity of the Shakespeare Haney
Premium Income Fund (ARSN 106 223 483) [2011] NSWSC 148.
43 [2003] UKPC 26; [2003] 2 A.C. 709 at 729, [52].
44 Expressed in an Australian textbook, Ford Principles of the Law of Trusts, 2nd edn (Sydney: Law
Book Co, 1990) at [425].
45 Per Kirby P. (1992) 29 N.S.W.L.R. 405 at [421]–[422]. See also Lewis v Tamplin [2018] EWHC 777
(Ch). The article by Steen and Lilly (fn.30 above) does not address privilege issues in the light of
Rosewood; the O’Loughlin article (fn.31) emphasises the importance of the Privy Council’s agree-
ment with the NSW decision just mentioned.
[594]
the ground of client legal privilege becomes susceptible to the exercise of discretion, as
part of a balancing process between the protection of the trustees from fishing expedi-
tions by beneficiaries, and the entitlement of beneficiaries to documents and information.
Such an approach seems inconsistent with the nature of the privilege. Client legal privilege
is part of the substantive law, and its maintenance is not discretionary.”46
It is submitted that this is not the impact of Rosewood. While that decision is now 6-029
accepted as introducing a judicial discretion into the determination of the
beneficiary’s entitlement to a trust document, that discretion does not impact on the
further question of whether that entitlement is undermined by the fact that that docu-
ment is privileged: if the court decides in its discretion that the beneficiary is entitled
to a particular trust document, the fact that it is also privileged should have no bear-
ing on the exercise of that discretion in the beneficiary’s favour.47 Thus, in Dawson-
Damer v Taylor Wessing LLP, H.H. Judge Behrens accepted as an accurate state-
ment of the law counsel’s submissions as follows:
“…as regards a case where a trustee takes legal advice in connection with the possible
exercise of its powers of disposition, the trustee is not obliged to disclose the contents of
those communications to the beneficiary at her request. The trustee may in its discretion
preserve the confidentiality in those communications. (See Re Londonderry’s Settlement
[1965] Ch 918.)…In hostile English litigation concerning an English trust the trustee may
be compelled under the CPR to disclose such confidential legal advice to a claimant
beneficiary – and thus the trustee will be unable to claim LPP against the beneficiary – if
the beneficiary seeks to challenge the validity or good faith of the trustee’s subsequent
decision about the exercise of its power.”48
On the other side of the coin, judicial discretion does not allow the court to over- 6-030
ride privilege where properly and conventionally claimed, whether by the trustee
(where for example, as discussed, the trustee obtains advice about litigation with a
beneficiary) or the beneficiary. Thus, in Kousouros v O’Halloran, Simon J. held that
the court’s jurisdiction to supervise the exercise of an administrator’s functions in
the administration of an estate did not entitle it to order disclosure of privileged
information held by a beneficiary under the estate. Overruling a county court judge’s
ruling to the contrary, he said:
“It appears that the Judge had in mind the decision in Schmidt v. Rosewood Trust.
However, the reasoning in [ISTIL Group Inc and another v. Zahoor and another] [2003]
EWHC 165 Ch at [93]…makes clear that the public interest in maintaining legal advice
46 Krok v Szaintop Homes Pty Ltd (No.1) [2011] VSC 16.

47 This was the view taken in Blades v Isaac [2016] EWHC 601 (Ch) where the court said: “The
opinion had been obtained by the defendants as trustees, for the benefit of the trust rather than for
their benefit personally, and therefore it was proper for them to pay for it from trust funds. But the
corollary of this was that it was a trust document, and therefore in the same category as other trust
documents, that is, available to the beneficiaries if the court so considered. In relation to such docu-
ments, there can be no legal professional privilege as between trustee and beneficiary. Arguments
about privilege in the present case were therefore simply irrelevant. Indeed, they made things worse,
by diverting attention and resources to non-points.”
48 [2015] EWHC 2366 (Ch) at [51.1]. The judge’s actual decision in this case was overturned by the
Court of Appeal (Dawson-Damer v Taylor Wessing LLP (Information Commissioner intervening))
[2017] EWCA Civ 74; [2017] 1 W.L.R. 3255 which held at [54] that there is no exemption under
the Data Protection Act 1998 that prevents a Subject Access Request from seeking documents that
are otherwise not disclosable to a beneficiary of a trust under trust law principles. See also Dawson-
Damer v Taylor Wessing LLP [2019] EWHC 1258 (Ch).
[595]
privilege is not to be weighed against other public interests: whether those interests are
designed to promote the emergence of ‘the truth’ or the ‘proper supervision’ of estates.”49
6-031 Companies, partnerships and corporations Principles similar to those by which

a beneficiary seeks access to privileged trust documents apply in litigation between
other recognised joint interest relationships, such as a company and its shareholder
(for example, in relation to the interpretation of a company’s articles of
association50). Also, where legal advice is sought by one partner in relation to
partnership affairs, that advice will not be privileged as against any other partner
because of the existence of the joint interest between them.51 Many of the cases
concerning shareholders and their entitlement to access to a company’s privileged
information arise in circumstances where the two are in dispute, although in such
situations similar exceptions that arise in relation to trustees and beneficiaries also
apply where the company is in dispute with its shareholders, where the sharehold-
ers are not entitled to the company’s privileged advice obtained in relation to their
dispute. This exception is discussed at paras 6-055ff below. Otherwise, as
recognised by the Court of Appeal in Woodhouse & Co (Ltd) v Woodhouse,52 the
general principle is that a shareholder enjoys an interest in company property such
that he would be entitled to see a legal opinion paid for out of company funds.53
6-032 A modern example of joint interests and privilege arising in a partnership context
is BBGP Managing General Partner v Babcock & Brown Global Partners.54 Here,
solicitors acted for a limited partnership, their advice being provided to the partners
through a managing general partner (MGP). Subsequently, a dispute arose between
the partners and an issue arose as to which partners were entitled to see the advice
MGP had procured. Norris J. held that, since the MGP had sought this advice, not
in its sectional interest as against its other partners but as managing general partner
of the limited partnership, then the solicitors’ client was not the MGP but the entire
partnership. This issue arose because the members of the partnership fell into
dispute with each other, with the MGP and certain limited partners (Group A) on
one side, and the remaining limited partners (Group B) on the other. Norris J. had
to decide which partners were entitled to see the advice given by the solicitors (since
not all of them had physically seen or held copies of their advice). With Norris J.’s
finding that the client was the whole partnership, not just the MGP, it followed that
none of the partners could assert privilege in the advice against any other partner.
49 [2014] EWHC 2294 at [63].

50 See W Dennis & Sons Ltd v West Norfolk Farmers’ Manure and Chemical Co-operative Co Ltd
[1943] Ch. 220 and Cas (Nominees) Ltd v Nottingham Forest Plc [2001] 1 All E.R. 954.
51 See Pearse v Pearse (1846) 1 De G & Sm 112 and Re Pickering (1883) 25 Ch D 247.
52 (1914) 30 T.L.R. 559.
53 At common law, a shareholder has a limited right to inspect the books of a company: R v Merchant
Tailors’ Company [1831] Eng. R. 267; (1831) 2 B & Ad 115; (1831) 109 E.R. 1086. These issues
have arisen with some frequency in Australia, for which see Edman v Ross [1922] NSW StRp 15;
(1922) 22 SR (NSW) 351 at 358, and Re Claremont Petroleum NL (1990) 2 Qd R 31, at 33, where
the right of access was limited to cases in which the shareholder could show he or she had a particular
interest in a particular dispute, and inspection would be limited to documents relevant to that dispute).
In Smartec Capital Pty Limited v Centro Properties Limited [2011] NSWSC 495; (2011) 83 ACSR
461, Barrett J. gave a member of a company that owned residential premises access to legal advice
provided to the company regarding the conduct of, ultimately unsuccessful, litigation. The ap-
plicant considered that the litigation may have been entered into without good reason, for an
improper purpose or not in good faith.
54 [2010] EWHC 2176 (Ch); [2011] Ch. 296. See also Inversiones Frieira SL v Colyzeo Investors II
LP [2012] EWHC 1450 (Ch); [2012] Bus. L.R. 1136.
[596]
Norris J. said:
“I consider that the authorities establish that where a solicitor accepts a joint retainer from
parties with potentially conflicting interests one client cannot insist as against the other
that legal professional privilege attaches to any of what passes between the solicitor and
that client during the currency and in the course of the retainer: Baugh v Cradocke (1832)
1 Mood & R 182; Perry v Smith (1842) M&W 681; Shore v Bedford (1843) 5 Man & Gex
271; Ross v Gibbs (1869) LR 8 Eq 522 and Re Konigsberg [1989] 3 All ER 289. (I note
that there is no question here of a separate and exclusive retainer of [the solicitors] by
some only of the joint clients). I consider that the authorities also establish that privilege
cannot be asserted as between partners in relation to any documents concerning the
partnership’s affairs: Re Pickering (1883) 25 ChD 247. [The solicitors’] advice was
undoubtedly sought and tendered in relation to the partnership’s affairs and forms part of
the books and records of the partnership.”55
There was a further joint interest angle to the BBGP decision, concerning the 6-033
entitlement of shareholders to access privileged information held by their company.
So, having held that the Group B partners were entitled to the privileged advice,
Norris J. next had to consider the fact that it was not just they who were suing the
Group A partners, but also an entity which was the ultimate shareholder of the MGP.
As to that claimants’ entitlement to see the privileged advice, Norris J. first noted:
“The right to confidentiality and privilege is a joint right of all the individual clients of
[the lawyers]: Phipson on Evidence 17th ed. para 24-01. …The one exception to the
principle is that [one particular corporate partner] may disclose the material to its direct
shareholder. That is because the shareholder is entitled to see all documents obtained by
a company in the course of the administration of its affairs (including legal advice obtained
by the company on behalf of all shareholders, though not legal advice obtained by a
company in response to an actual or contemplated claim by the shareholder against the
company) in which it has a common interest: see Woodhouse & Co Ltd v Woodhouse
(1914) 30 TLR 559, Re Hydrosan Ltd [1991] BCLC 418, CAS Nominees Ltd v Not-
tingham Forest FC plc [2002] BCLC 613 and Arrow Trading v Edwardian Group [2005]
1BCLC 696.”56
However, the difficulty was that this claimant was not the MGP’s direct 6-034
shareholder. So the questions arose, how much further did the joint interest extend
and what were the limits on how much further this dissemination of privileged
material could extend? Norris J. was not prepared to allow the direct shareholder
in the limited partnership in turn to share the material with its shareholders (the co-
claimant) upon the same principle, and so he answered that question in the nega-
tive, on grounds of policy rather than principle:
“…bringing within the ring of privilege the shareholder of the company which was the
actual client of the solicitor on the ground of common interest is a well settled rule. But I
see no reason to extend the entrenchment upon the basic rule of privilege all the way up
the chain of holding companies notwithstanding the steady dilution of that common
interest.”57
A less convincing example of joint interest was suggested in Mayor of Bristol v 6-035
55 [2012] EWHC 1450 (Ch); [2012] Bus. L.R. 1136 at 315–316, [52].
56 [2012] EWHC 1450 (Ch); [2012] Bus. L.R. 1136 at 317, [58].
57 [2010] EWHC 2176 (Ch); [2011] Ch. 296 at 317, [59]. It is unfortunate that Norris J. referred to a
common interest and not a joint interest. The partnership joint interest was well established long
before common interest privilege was revived: see Section 3 below.
[597]
Cox58 where Pearson J. indicated that in an action by a ratepayer against the City
Corporation with regard to the raising or spending of the city rates, it might be pos-
sible to argue that the ratepayer was in a position analogous to that of a beneficiary
under a trust such that he would be entitled to see the corporation’s legal advice
obtained at ratepayers’ expense in relation to such matters.59 60
6-036 Companies and their directors Company directors stand in an uncertain posi-
tion when in litigation with their company so far as concerns their right of access
to a company’s privileged materials, or their right to prevent the dissemination of
privileged materials that are harmful to their interests. It is clear that the common
law confers on a director a limited entitlement to inspect the company’s book and
records, including legal advice that the company receives, so as to allow him to
discharge his duties as director. Equally, that entitlement ceases once the director-
ship is determined: see Conway v Petronius Clothing Co Ltd61 and Oxford Legal
Group Ltd v Sibbasbridge Services Plc.62 So, might a director seek disclosure of the
company’s legal advice obtained before he ceased to be a director should he become
involved in litigation with the company thereafter? What is clear is that the direc-
tor cannot have an entitlement to advice obtained by the company which relates to
the litigation between them. But what about litigation which pre-dates their dispute?
Several scenarios occur.
6-037 First, if the director has entered into a joint retainer with the company, then he
will enjoy a joint interest with the company over privileged materials that result
from the retainer, which means he will be entitled to disclosure of those materials
in litigation with the company, as well as be entitled to prevent their disclosure to
third parties without his agreement. The retainer can be an express one or implied,
as discussed in paras 6-015ff above. It will be recalled that in R. (on the applica-
tion of Ford) v Financial Services Authority, Burnett J. said:
“The circumstances in which joint privilege may arise are legion. In corporate bodies with
a tight controlling management the legal interests of the company and its directors and
senior employees will often coincide or overlap. …Corporate bodies seeking advice in
connection with public inquiries may sweep within the ambit of the advice the conduct
of their staff. The lawyers concerned may represent and advise the individuals or they may
58 26 Ch D 678.
59 Pearson J. said (at 683) “I think that if this was an action by Mr. Cox as a ratepayer against the
corporation of the city of Bristol with regard to some matter or other which related to the raising of
the rates, or to the expenditure of the rates, it may be quite possible, and it is very probable, that Mr.
Cox would have a right to see them, but this is an action by the mayor, alderman, and burgesses of
the city of Bristol, not as against Mr. Cox in any way whatever as a ratepayer, but as a corporation
really defending the interests of the ratepayers themselves against the Defendant, who they say is
injuring those interests. That is a totally different case altogether, and I am of opinion that that argu-
ment cannot prevail.” It is difficult to imagine 140 years on, that a ratepayer would succeed with
such a claim. As Nourse L.J. commented in St Alban’s City and District Council v International
Computers Ltd [1996] 4 All E.R. 481: “…it would be incorrect, except in a broad sense, to describe
a local authority as a trustee for the inhabitants of its area…” (at 489).
60 The dubiousness of this decision is further indicated by the fact that the Court of Appeal has since
held that Cox was wrongly decided insofar as it held that minutes of meetings of two committees
of the local authority with which the ratepayer was in dispute were protected by litigation privilege
as the meetings had taken place after litigation was either contemplated or in progress: see WH Hold-
ing Ltd v E20 Stadium LLP [2018] EWCA Civ 2652 where the Court said at [26]: “In our judgment
Bristol v Cox is wrong on this point and should be overruled.”
61 [1978] 1 W.L.R. 72.
62 [2008] EWCA Civ 387.
[598]
be separately advised. …Best practice would suggest that the retainer letter should make
clear whether advice was being given to a corporate body alone or also to a number of
identifiable directors or employees. If the position evolves after the initial engagement,
best practice would suggest that any change is recorded. That course is likely to avoid a
costly dispute of the nature that has erupted in this case. However, in the absence of a
formal joint retainer or a clear contemporary record of the scope of the advice being given,
a dispute about whether there was joint privilege requires a factual inquiry to determine
the true position at the material time.”63
A second scenario concerns the position of a director who has ceased to hold that 6-038
office but did not enjoy a joint interest in the company’s privileged advice: does he
have any entitlement to access the privileged information if he enters into litiga-
tion with the company? This issue has not been analysed by the English courts in
terms of whether the director enjoys a joint interest, absent a joint retainer, in the
same way as a beneficiary or a shareholder. As a result, there is very little case law
on the point. In Shirley v Channel Islands Knitwear Co Ltd, the Royal Court of
Jersey held that, because a director’s power of inspection of company correspond-
ence ceased upon termination of his directorship, and because such a right is not
conferred on a director for his own advantage but to enable him to carry out his du-
ties as a director, then a former director did not enjoy a “proprietary right” to inspect
privileged communications made before the director ceased to hold that role.64 On
the other hand, in Derby v Weldon (No.10),65 Vinelott J. considered that directors
who had, whilst directors, considered legal advice obtained for the company, could
defeat a claim to privilege over that advice in any proceedings brought against them
by the company or its liquidators, even though that privilege could be asserted
against other adversaries. He said:
“[Counsel] submitted that privilege is not lost merely because a document is com-
municated by a company to an officer or employee. That is no doubt true where the ques-
tion arises in litigation between the company and a third party. But it does not follow that
the company can rely on the privilege attaching to, for instance, instructions and advice
passing between the company and its solicitors, copies of which have been supplied to
the director, if there is subsequently litigation between the company and the director and
the advice or instructions are material to an issue raised in the litigation.”66
As noted, the English courts have not considered whether there exists a form of 6-039
joint interest relationship between company and director akin to that of trustee and
beneficiary. It is difficult to see how such a joint interest could exist save in
particular circumstances where the interests of the company and its directors might
63 [2011] EWHC 2583 (Admin) at [39].

64 [1985–86] J.L.R. 404 at 418. The Royal Court did not preclude in some other case the exercise of a
discretion by the court to inspect privileged correspondence. It is not, with respect, clear what this
means..
65 [1991] 1 W.L.R. 660.
66 [1991] 1 W.L.R. 660 at 670. But see the Employment Appeal Tribunal decision in Bradford Hospitals
NHS Trust v Burcher [2001] UKEAT 958 01 2809, 28 September 2001, in which the EAT ap-
proved an agreed form of Order by way of an appeal against a direction that the applicant, the
respondent’s former personnel director, be entitled to his own notes of a meeting he attended dur-
ing the currency of his employment at which legal advice had been given concerning another
employee. The decision in Derby (No.10) does not seem to have been considered in Burcher.
[599]
be said to coincide, although one commentator has suggested such an interest

exists.67
6-040 Further consideration will be given to the operation of joint interests in a
corporate context in paras 6-055ff below, which look at what happens when par-
ties sharing a joint interest fall into dispute with each other.
6-041 Commercial interests In more recent times, the courts have recognised the exist-
ence of joint interests that arise out of commercial relationships and which often
carry with them a right that entitles one party to that relationship to obtain disclosure
of the other’s privileged documents in litigation between them. That right derives
from the nature of the relationship between the parties and the fact that such docu-
ments have been created or obtained by one party in furtherance of the joint inter-
est and, in that sense, on behalf of all those who share it.68 As noted above, in these
cases there are often references not only to joint interests, but also to common
interests or a “commonality of interest”. The terminology is probably of small
importance: the crucial factor is the identification of an interest that justifies, either
by reference to an express contractual provision or to the nature of the parties’
relationship, a right of access to another’s privileged materials. As it was put by
Warren J. in Yunghanns v Elfic Pty Ltd (No.2):
“Privilege does not attach to communications against a person having a joint interest. The
joint interest will encompass relationships falling in a special category including as
between partners and between a trustee and cestui que trust. A joint venture is in the nature
of a partnership in some respects. It involves the sharing of profits and the division of
responsibilities within a relationship. The nature of the arrangement of a joint venture also
involves special characteristics of trust and good faith analogous to that of a trust. If
privilege does not attach to communications against a person having a joint interest where
the relationship is one of partnership or trust then logically the attachment cannot arise
where the relationship constitutes a joint venture. Where a joint venture exists the joint
venturers have duties and obligations towards one another of a contractual and fiduciary
type. It is the nature of the joint venture relationship that gives rise to the right of each
joint venturer to obtain access to documents that are otherwise privileged against the
world.”69
6-042 The first such case under English law was CIA Barca de Panama SA v George
Wimpey & Co Ltd,70 where the parties each held a 50 per cent holding in a joint
venture company. When they terminated these arrangements, Wimpey bought out
Barca’s interest on terms that when the joint venture company’s final losses were
ascertained Barca should pay Wimpey its share of the losses, if any. At this point,
the joint venture company was engaged in proceedings with a third party which
meant that finalisation of the financial results would have to await the conclusion
of the litigation, which was now conducted by Wimpey alone. In the event, it
67 See Matthew Morrison’s article on this published by PLC on 29 November 2016. The author refers
to a number of Australian authorities where a joint interest between company and director has been
recognised, eg The Shed People Pty Ltd v Turner (2000) 34 ACSR 609. In another Australian case,
Sharpe v Grobbel [2017] NSWSC 1065, solicitors were entitled to assert the company’s privilege
even though it did not itself appear to assert that privilege because of a deadlock between its
directors.
68 Per Moore-Bick J. in Commercial Union Assurance Co Plc v Mander [1996] 2 Lloyd’s Rep. 640 at
645–646.
69 [2000] VSC 113 at [38].
70 [1980] 1 Lloyd’s Rep. 598.
[600]
settled. In subsequent litigation between them, in which Barca disputed Wimpey’s

entitlement to settle without its prior approval, Barca sought discovery of docu-
ments relating to the settled dispute which Wimpey attempted to withhold on ac-
count of privilege. The Court of Appeal upheld Barca’s application for disclosure.
Stephenson L.J. thought the relevant principles were those which governed the posi-
tion where a person had a joint interest with the client in the subject matter of his
privileged communications with his lawyer, as with partners, a company and its
shareholders and a trustee and beneficiary:
“So here, it seems to me, however you define the relationship which their joint interest
creates, it is enough to entitle the plaintiffs (Barca) whether as beneficiaries, cestui que
trust, or as partners in a joint venture or as principals, to the same inspection of docu-
ments relating to the [joint venture litigation] as the defendants themselves had.”71
Bridge L.J. put the position slightly differently, with more of an emphasis on the 6-043
common interest that existed between the joint venture parties:
“If A and B have a common interest in litigation against C and if at the point there is no
dispute between A and B, then if subsequently A and B fall out and litigate between
themselves and the litigation against C is relevant to the disputes between A and B, then
in the litigation between A and B neither A nor B can claim legal professional privilege
for documents which came into existence in relation to the earlier litigation against C.”72
The decision in Formica Ltd v Secretary of State (acting by the Export Credits 6-044
Guarantee Department),73 while not concerned with a joint venture, also il-
lustrates how a contractual relationship can create the type of joint interest which
overcomes a claim to privilege. The facts were that the plaintiffs had agreed to sup-
ply goods to a Swedish company under a contract supported by an ECGD
guarantee. This obliged the ECGD to pay the plaintiffs 90 per cent of any loss they
sustained on that contract. The ECGD’s guarantee was subject to a number of condi-
tions which included requiring the plaintiffs (i) at all times promptly to disclose all
facts in any way affecting the risks guaranteed, and (ii) to take all practicable
measures to prevent or minimise any loss recoverable under the guarantee. The
plaintiffs’ customer went into liquidation owing them large sums of money. The
ECGD resisted the plaintiffs’ call on the guarantee, claiming that the plaintiffs failed
to keep them fully informed, inter alia, in relation to litigation abroad in which they
had tried to recover some of the monies owing to them. The judge held that the
plaintiffs’ contractual disclosure obligations were wide enough to oblige them to
provide ECGD with timely information, including privileged information, about
their attempts to recover their losses. That information was not privileged as against
ECGD, who had been contractually entitled to see it at the time by virtue of their
rights under the guarantee. Although it was too late for the ECGD now to obtain
disclosure of the information by this route (the operation of the guarantee having
ceased), nonetheless it was not open to the plaintiffs to raise or claim privilege
71 [1980] 1 Lloyd’s Rep. 598 at 614.

72 [1980] 1 Lloyd’s Rep. 598 at 615. Moore-Bick J. in Commercial Union Assurance Co Plc v Mander
[1996] 2 Lloyd’s Rep. 640 at 646 interpreted the Barca decision by reference to both joint and com-
mon interests, referring to the fact that the litigation with the third party that Wimpey had been
conducting had been pursued for the joint benefit of both parties who had a common interest in the
claim that arose out of their contractual relationship.
73 [1995] 1 Lloyd’s Rep. 692.
[601]
against them in the subsequent litigation.74 Although the decision turned to an extent
on the contractual disclosure obligations, Colman J. was evidently of the view that
the contractual relationship between the parties was such that both had an interest
in recovering the outstanding indebtedness from the plaintiff’s customer.75
6-045 Another commercial relationship which is now generally treated as creating a
community of interest similar in nature to the one which featured in the Barca deci-
sion is that which exists between insurer and reinsurer under a contract of insur-
ance which contains a “follow settlements” type clause. In Commercial Union As-
surance Co v Mander,76 a case as much regarded as one concerned with a common
interest as a joint interest (as to which see paras 6-092ff below), Moore-Bick J. held
that:
“…insurers cannot withhold from the reinsurers on the ground of privilege documents
brought into being for the purpose of handling the original claim, even if they would be
subject to legal professional privilege as against a third party.”77
6-046 Disappointed beneficiaries This section is concerned with a situation in which

a joint interest would have existed but for a lawyer’s negligence that deprived a
party of such an interest. So, whereas a beneficiary under a will generally has a right
of access to privileged documentation held by the estate,78 what is the position of
the so-called “disappointed beneficiary”—namely, the person who would have been
a beneficiary under a will that the testator would have executed if his instructions
had not been negligently executed by his solicitors? It seems clear that the disap-
pointed beneficiary cannot have the same rights as a properly constituted beneficiary
under the will, with the consequence that the disappointed beneficiary may never
know that the testator intended him to benefit from his estate upon death. But even
if he does, it is not clear that he has a right of access to privileged information that
would support his claim.
6-047 Surprisingly, this issue does not appear to have been addressed in detail in any
reported judgment of the English court. It has been addressed in Canada and by the
New Zealand Court of Appeal in Gartside v Sheffield, Young and Ellis.79 This was
an action brought by a disappointed beneficiary against the solicitors who had al-
legedly failed to draw up a will in accordance with the testatrix’s instructions given
very shortly before her death. Holding that solicitors in New Zealand owe a duty
of care in such circumstances to a disappointed beneficiary, the Court of Appeal
went on the address the question of whether the privilege attaching to the testatrix’s
instructions to the solicitor had the effect of denying the plaintiff access to them in
74 [1995] 1 Lloyd’s Rep. 692 at 702.

75 [1995] 1 Lloyd’s Rep. 692 at 701.
76 [1996] 2 Lloyd’s Rep. 640.
77 The judge’s emphasis ([1996] 2 Lloyd’s Rep. 640 at 646). See also Colman J. in the Formica case,
[1995] 1 Lloyd’s Rep. 692 at 699. For a factually complex insurance decision involving contractual
rights to access privileged documents in an ATE insurance context, see Aikens J. at length in
Winterthur Insurance Company v AG (Manchester) Ltd (in liquidation) [2006] EWHC 839 (Comm)
where he held (at [107]) that any assertion of a right to “litigation” privilege in respect of pre-ATE
or post-ATE policy documents would be inconsistent with the insurer’s agreed right of access: “On
the authority of cases such as Brown v GRE the insured cannot use ‘litigation privilege’ to prevent
the insurer using his contractual right of access to the documents.” See also Accident Exchange Ltd
v McLean [2018] EWHC 23 (Comm), discussed below under waiver.
78 See Russell v Jackson (1851) 9 Hare 387, noted at para.6-128 below and Curtis v Beaney [1911] P.
181
79 [1983] N.Z.L.R. 37.
[602]
support of his claim and whether the same privilege would prejudice the solicitor
in defending the claim, assuming in both cases that the personal representatives,
who inherited the testatrix’s privilege, refused to waive it.
Two of the judges in Gartside suggested that it would be difficult to persuade the 6-048
court that privilege should get in the way of the court’s determination of this issue,
either because the court would be slow to impute to the client an intention that, to
the prejudice of the plaintiff, instructions in favour of the plaintiff should be treated
as confidential; alternatively, because the personal representatives would normally
be expected to waive the privilege.80 In fact, McMullin J. suggested that since
privilege arises as a matter of public policy from the balancing of various matters,
then if the personal representatives were to adopt other than a neutral position by
declining to waive the privilege, the court would hesitate to uphold it.81 This may
well be a pragmatic approach to this problem, but it is somewhat at odds with the
absolute nature of privilege, the lack of any established interest in the estate by the
disappointed beneficiary and the fact that, if the personal representatives were to
refuse to waive privilege, then their conduct ought not to be susceptible to enquiry,
let alone criticism, by the court.82
The third judge in Gartside reached the same view. While adopting a perhaps 6-049
more subtle approach, this decision still demonstrated an expectation that the
personal representatives would waive privilege. Richardson J. said:
“Any such privilege is that of the client, not the solicitor. On death it passes to the estate.
The personal representatives in turn are obliged to deal fairly in the interests of all those
having claims against the estate and for that purpose to make available all relevant
information as in practice they do in testamentary promises and family protection cases.
A solicitor who had had instructions to draft a new will but who had failed to carry out
those instructions will be under a duty to the personal representatives to advise them of
those instructions whether or not that might lead to claims against the solicitor by the
estate and/or by disappointed beneficiaries. In the ordinary course the personal representa-
tives will then waive any privilege and disclose the information to those who have a
legitimate interest in receiving that information.”83
Richardson J. went on to draw analogies with claims in respect of the client’s 6-050
testamentary dispositions and briefly examined the authorities whereby the courts
have refused to allow privilege to be set up in relation to any claim brought against
the personal representatives in those situations. He appeared to suggest that, by anal-
ogy, it would be difficult for the personal representatives to justify refusing to waive
the privilege when requested by either the plaintiff or the defendant in negligence
proceedings brought by a designated beneficiary under a proposed will. He sug-
gested that:
“The solicitor’s duty of care to intended beneficiaries parallels his duties to his clients.”84
This last comment has received some echoes in the approach adopted by the 6-051
English Court of Appeal in Larke v Nugis,85 where the Court of Appeal approved
the principle that:
80 Per Cook J., [1983] N.Z.L.R. 37 at 44 and McMullin J., [1983] N.Z.L.R. 37 at 55.
81 [1983] N.Z.L.R. 37 at 55.
82 See Ch.1, Section 4.
83 [1983] N.Z.L.R. 37 at 49.
84 [1983] N.Z.L.R. 37 at 50.
85 Decided in 1999 and reported at [2000] W.T.L.R. 1033.
[603]
“…when there is litigation about a will, every effort should be made by the executors to
avoid costly litigation if that can be avoided and, when there are circumstances of
suspicion attending the execution or making of the will, one of the measures which can
be taken is to give full and frank information to those who might have an interest in at-
tacking the will as to how the will came to be made. In a case of this kind, where suspicion
attaches to the will because certain persons, who have only recently come into the life of
the testatrix, take a substantial benefit under the will, then clearly the circumstances in
which instructions for the will were given are of the utmost importance, and it is informa-
tion as to that matter, even more than information as to the formalities of attestations, that
is needed.”
6-052 That principle was said by the Court of Appeal to be wider than the relevant Law
Society recommendation which is now to be found in its “Disputed Wills Practice
Note—06 November 2011” which itself asserts that the Law Society guidance
prevailing when Larke was decided was confirmed and upheld by it. That guid-
ance, repeated in the current Practice Note at s.2, asserts that:
“Privilege cannot be claimed by one person claiming under a deceased testator’s will as
against another person having a similar claim in respect of matters communicated by the
deceased to the solicitor during the lifetime of the deceased. The testator’s solicitor could
be compelled by the court under subpoena to answer questions directed to eliciting com-
munications made to him by the testator in the course of preparing the will if put to him
or her by either party. Where a serious dispute arises as to the validity of a will, beyond
the mere entering of a caveat and the solicitor’s knowledge makes him or her a material
witness, then the solicitor should make available a statement of his evidence regarding the
execution of the will and the circumstances surrounding it to anyone concerned in the
proving or challenging of that will, whether or not the solicitor acted for those who were
propounding the will.”
6-053 In Canada, there seems to be a well-established exception to privilege in rela-

tion to wills. In Geffen v Goodman Estate, Wilson J. noted that in Canada:
“An exception has, however, developed to permit a solicitor to give evidence in wills cases
and a variety of explanations for this exception to the general rule concerning solicitor-
client privilege have been advanced by commentators and courts alike. In Wigmore on
Evidence (vol. 8, {SS} 2314), for example, the author suggests that, in so far as issues
relating to the execution or contents of a will are concerned, the rationale underlying the
exception relates to the testator’s desire for secrecy. At page 610 of vol. 8, Professor
Wigmore states: ‘But for wills a special consideration comes into play. Here it can hardly
be doubted that the execution and especially the contents are impliedly desired by the cli-
ent to be kept secret during his lifetime, and are accordingly a part of his confidential
communication. It must be assumed that during that period the attorney ought not to be
called upon to disclose even the fact of a will’s execution, much less its tenor. But, on the
other hand, this confidence is intended to be temporary only. That there may be such a
qualification to the privilege is plain’. In those cases dealing with the validity of a will as
opposed to its execution or contents Professor Wigmore acknowledges that the secrecy
rationale does not fully explain why a testator’s communications with his solicitor should
be admitted. In such circumstances he suggests at pp. 612–13 that a solicitor may testify
as to the state of mind of the testator since, if the testator were insane or unduly influenced,
his utterances were ‘obviously not confidentially made with reference to the secrecy of
the fact of insanity or undue influence, for the testator of course did not believe those facts
to exist and therefore could not possibly be said to have communicated them’. Professor
Wigmore then goes on to cite numerous American cases in which a solicitor has been
[604]
permitted to testify where the validity of a will has been challenged on the ground that
the testator was unduly influenced.”86
In New Zealand, some issues are addressed by statute. The Evidence Act 2006 6-054
provides at s.66:
“(2) If a person has a privilege conferred by any of sections 54 to 57 in respect of a
communication, information, opinion, or document, the personal representative of the
person or other successor in title to property of the person— a) is entitled to assert the
privilege against third parties; and (b) is not restricted by any of sections 54 to 57 from
having access or seeking access to the privileged matter.
(3) However, subsection (2) applies only to the extent that a Judge is satisfied that
the personal representative or other successor in title to property has a justifiable interest
in maintaining the privilege in respect of the communication, information, opinion, or
document.
(4) A personal representative of a deceased person who has a privilege conferred by
any of sections 54 to 57 in respect of a communication, information, opinion, or docu-
ment and any other successor in title to property of a person who has such a privilege, may,
on the application of a person who has a legitimate interest in maintaining the privilege
(including another holder of the privilege), be ordered by a Judge not to disclose the
privileged matter in a proceeding.”87
Termination of the joint interest—disputes between the parties to the

joint interest
As the trustee-beneficiary decision in Talbot v Marshfield88 illustrates, the right 6-055
of one party to a joint interest to obtain access to the other’s privileged documents
relating to that interest does not extend to privileged communications made in rela-
tion to the subject matter of a dispute between them. Thus, in Mayor of Bristol v
86 [1991] 2 S.C.R. 353. See also Stewart v Walker (1903) 6 O.L.R. 495 and Re Ott [1972] 2 O.R.5 (Surr.
Ct.). And note Lord Neuberger P’s brief reference in the Supreme Court’s decision in R. (on the ap-
plication of Prudential Plc) v Special Commissioner of Income Tax [2013] UKSC 1; [2013] 2 W.L.R.
325 at [17] to “one of a few miscellaneous exceptions [to privilege] (e.g. in a probate case where
the validity of a will is contested)”.
87 For a decision on this provision, see Lynds v Fitzherbert Rowe HC Palmerston North [2011] NZHC
28, which said at [29] that the section confirms the common law position that privilege does not die
with the client, but that “[i]t passes to the client’s personal representative or, as to the interest in
specific property, to the client’s successor in title”: Gartside v Sheffield, Young and Ellis [1983]
NZCA 37; [1983] N.Z.L.R. 37 at 44. As for the requirement in s.66(3), which requires the judge to
be satisfied that the personal representative “has a justifiable interest in maintaining the privilege …”,
there is no indication in the section of what would amount to a “justifiable interest”. New Zealand’s
Law Commission provided some guidance on this issue in its Preliminary Paper 23, at para.180,
where it asserted one example when a personal representative of a deceased person may not be
entitled to assert privilege against a third party (in terms of s.66(2)(a)), namely when the court is
hearing a claim under the Family Protection Act 1955. In the Commission’s view, the personal
representative should have to disclose communications between the deceased and his or her lawyer.
This is because of the personal representative’s duty to use the otherwise privileged information for
the benefit of all persons interested in the estate.
88 (1865) 2 Drew & Sm 549. In Australia, see Gray v BNY Trust Company of Australia Ltd [2009]
NSWSC 789; (2009) 76 N.S.W.L.R. 586 and Dura (Australia) Constructions Pty Ltd v Hue Boutique
Living Pty Ltd [2011] VSC 477, where Macaulay J. said at [19]: “As can be seen, the cases
distinguish the situation in which the advice is sought and obtained by a trustee in the discharge of
its obligation to properly administer the trust from that in which it seeks advice in its personal
capacity.” According to J. Cunningham v A. Cunningham [2010] J.L.R. Note 24, in certain very
limited circumstances the Royal Court in Jersey can exercise a discretion under art.51 Trusts (Jersey)
law 1984 to direct that a trustee waive its privilege in favour of a beneficiary under the trust.
[605]
Cox,89 Pearson J. was concerned with an action brought by the Mayor and other
dignitaries against Mr Cox in which Bristol City Corporation was defending the
interests of ratepayers against a defendant who it was alleged was injuring those
interests. As their interests were at odds, there was no basis upon which the defend-
ant could have access to the plaintiffs’ privileged communications with their legal
advisers concerning the action.
6-056 In Woodhouse & Co (Ltd) v Woodhouse,90 the Court of Appeal, whilst recognis-
ing the principle that a shareholder enjoys an interest in company property such that
he would be entitled to see a legal opinion paid for out of company funds, nonethe-
less held that the principle does not apply “where the parties were sundered by
litigation”,91 since that would make it impossible for a company in litigation with
a shareholder to obtain confidential advice.92 This applies irrespective of the size
of the company in dispute with its shareholders. So, in Cas (Nominees) Ltd v Not-
tingham Forest Plc,93 Evans-Lombe J. applied the Woodhouse principle to a public
limited company whose shares were quoted on the stock market.
6-057 As Blackburne J. expressed it in Arrow Trading & Investments Est 1920 v
Edwardian Group Ltd:
“It is well established by authority that a shareholder in the company is entitled to
disclosure of all documents obtained by the company in the course of the company’s
administration, including advice by solicitors to the company about its affairs, but not
where the advice relates to hostile proceedings between the company and its shareholders:
see Re Hydrosan Ltd [1991] BCC 19 and CAS (Nominees) Ltd v Nottingham Forest plc
[2002] BCC 145. The essential distinction is between advice to the company in connec-
tion with the administration of its affairs on behalf of all of its shareholders, and advice
to the company in defence of an action, actual, threatened or in contemplation, by a
shareholder against the company.”94
6-058 These comments were used to found a disclosure application in Cadogan

Petroleum Plc v Tolley, in which a freezing injunction was obtained against the
defendants with the benefit of extracts from interviews of potential witnesses for
the claimants. The defendants applied for disclosure of, inter alia, the full notes of
interview which the court held were covered by litigation privilege. One of Mr Tol-
ley’s co-defendants was a Mr V who was also a shareholder in the first claimant.
He argued that since a company is not in general entitled to assert privilege against
a shareholder and he was a shareholder when the interviews were conducted, and
since the claimants’ solicitor had stated that the proceedings contemplated at the
time of the interviews were those against Tolley and not Mr V himself, then
privilege could not be asserted against him. Newey J. rejected this argument. Not-
ing that the claimants’ case was that Mr Tolley and Mr V were conspirators, he held:
“While the authorities to which I have been referred do not precisely cover the situation,
89 26 Ch D 678.
90 (1914) 30 T.L.R. 559.
91 Per Phillimore L.J. at 560.
92 See also Gouraud v Edison Gower Bell Telephone Co Ltd (1888) 57 LJ (Ch) 498. Here, Chitty J.
allowed a shareholder who was seeking to set aside an agreement allegedly entered into in fraud of
his rights as shareholder to see communications between the company and its lawyers which related
to the agreement the subject of the actions. However, that right appears to have been limited to docu-
ments that pre-dated the shareholder’s writ.
93 [2001] 1 All E.R. 954.
94 [2004] EWHC 1319 (Ch); [2004] B.C.C. 955 at [24].
[606]
it seems to me that [the claimants] must be right. The interviews were conducted in
contemplation of litigation against a person whom the First Claimant now alleges had been
engaged in a conspiracy with Mr [V]. Whether or not the Cadogan Group knew it at the
time, ‘the interests of the company and the shareholder were adverse’ (to use Lush J’s
words [in Woodhouse & Co (Ltd) v Woodhouse (1914) 30 TLR 559]). If a company seeks
legal assistance in relation to potential litigation against an individual who has been
conspiring with one of its shareholders, it must be entitled to maintain privilege against
the shareholder even if the shareholder has up to that point succeeded in concealing his
role.”95
As noted above at paras 6-031ff, where partners are in dispute with each other, 6-059
the question of whether legal advice sought in relation to one group’s interests ought
to be privileged as against the other partners to the potential litigation is slightly
bedevilled by the suggestion that the privilege falls away if the privileged advice
is paid for out of partnership funds. As will be submitted below, that fact should
not—despite the position in relation to trustees and beneficiaries—entitle the minor-
ity to access as of right to the majority’s privileged information: rather, the exist-
ence of the dispute between them changes the nature of their relationship so that
the majority must—in line with the decisions made in a corporate context, such as
Woodhouse—be entitled in good faith to assert privilege against the minority.96
In the Commercial Union decision noted above, Moore-Bick J. observed that the 6-060
fact that a dispute subsequently arises between the parties so that their interests are
in conflict at a later stage does not affect the accrued entitlement to the other’s
privileged documents:
“In a case where the documents contain legal advice, that joint interest must exist at the
time the advice is sought, and if it exists at that time, it is not lost simply because the par-
ties subsequently fall out: see, for example CIA Barca v Wimpey. The fact that the interests
of two parties are potentially in conflict does not in my view prevent their having a suf-
ficient joint interest in the subject matter of the advice at the time it is sought to bring this
principle into operation.”97
In relation to companies, difficulties can sometimes arise in trying to determine 6-061

whether proceedings are of a type to justify applying the Woodhouse principle. In
Re Hydrosan Ltd,98 Harman J. held that a contributories’ petition for a just and
equitable winding up of a company under s.485 Companies Act 1985 was not
“hostile” litigation of the type that justified the company asserting privilege against
a shareholder as per the Court of Appeal in Woodhouse & Co (Ltd) v Woodhouse,99
even though it produces “severe results” for the company if it succeeds. This was
because the nature of the allegations on such a petition was in respect of wrongs
by those in control of the company against a shareholder, rather than by the
company itself. This was to be contrasted with a “just and equitable” winding-up
95 [2011] EWHC 2286 (Ch) at [59].

96 Of course, this submission is not without difficulty. Those managing the firm can easily apply
partnership funds to pay for legal advice, the minority may well be unable to do so without the
consent of the majority. That should not however alter the position as to the privileged status of the
advice obtained by the majority.
97 [1996] 2 Lloyd’s Rep. 640 at 646.
98 [1991] B.C.L.C. 418.
99 (1914) 30 T.L.R. 559.
[607]
petition that Harman J. accepted constituted hostile litigation so as to make the

privilege available.100
6-062 In BBGP Managing General Partner v Babcock & Brown Global Partners,101
Norris held:
“In my judgment the principle which enables the company to keep from the shareholder
(on the ground of lack of common interest) legal advice taken by the company in connec-
tion with actual or contemplated proceedings between the company and that shareholder
applies whatever the nature of the dispute. The dispute does not have to be between the
company and the shareholder in relation to the company’s internal affairs (though that is
the usual context in which it comes before the Court). If the company is in dispute with
the shareholder about some service provided at arm’s length by the shareholder to the
company there is equally no common interest in the advice obtained.”
6-063 In Sharp v Blank,102 Nugee J. had to examine more precisely the point at which
relations between company and shareholder had so deteriorated that the shareholder
was deprived of his right to obtain privileged documents from the company. Sharp
concerned a group action brought by Lloyds Banking Group shareholders over the
bank’s acquisition some years previously—in 2008—of another financial institu-
tion, HBOS. Lloyds had inevitably taken legal advice relating to its acquisition of
HBOS, and to its participation in the UK Government’s Recapitalisation Scheme
in November 2008, and the question arose as to whether its privilege prevailed
against the shareholders in the subsequent litigation. Lloyds’ position was that it was
enough that even in 2008, the parties’ interests were “adverse” such that its privilege
prevailed over the shareholders’ entitlement to privilege. For this proposition, the
bank argued (by reference to Woodhouse & Co Ltd v Woodhouse103), that there
needed to be a “common interest” between the parties. Nugee J. rejected this: the
decision in Woodhouse did not provide any support for the notion that the determin-
ing question of whether the general rule permitting the shareholder access to the
company’s privileged information applies, or whether the exception to that rule ap-
plies, is whether the interests of the company and the interests of its shareholders
are wholly aligned or not. He said:
“… the foundation of the exception is the fact that not only the interests of the parties have
diverged, but that litigation, actual, threatened or in contemplation, has caused the
company to take advice in defence of, in connection with, or relevant to, that actual,
threatened or contemplated litigation. It is not disputed that the exception goes beyond
actual threatened litigation and encompasses litigation in contemplation.”104
6-064 But there was a further step, in that the judge noted consistent statements in the
case law to the effect that the foundation of the exception is the fact that, not only
have the interests of the parties diverged, but that litigation, actual, threatened or
in contemplation, has caused the company to take advice in defence of, in connec-
tion with, or relevant to, that actual, threatened or contemplated litigation. That
meant that he could not accept Lloyds’ argument that as soon as litigation was
reasonably contemplated the interests of the company and the shareholders could
100 [1991] B.C.L.C. 418 at 422.

101 BBGP Managing General Partner v Babcock & Brown Global Partners [2010] EWHC 2176 (Ch);
[2011] Ch. 296.
102 [2015] EWHC 2681 (Ch).
103 [1914] 30 TLR, 559.
104 [2015] EWHC 2681 (Ch) at [10]–[11].
[608]
be seen to diverge and that thereafter the shareholders were not entitled to see any
legal advice taken by the company. Nor was there a general principle that once the
company is committed to a course of action, litigation is therefore really in
contemplation. Accordingly, on the facts in Sharp, Nugee J. was:
“…quite unpersuaded that there is any general principle which enables me to conclude
today that litigation was actually or reasonably in contemplation on 18th September 2008
— the date of the announcement…when Lloyds announced that it had agreed with HBOS
to form an enlarged group.”
Relevant to this was an exchange between an attendee at an analysts’ meeting on 6-065
that same date in which the Lloyds’ chairman was asked whether he thought the
bank’s shareholders would be happy that it had taken on board £72 billion of toxic
mortgages and the highest arrears in the market, to which he replied that the bank
would not do this unless it thought its shareholders would regard it as a very
worthwhile exercise. As to this, Nugee J. said that:
“It is one thing to say the board could reasonably have expected some dissentient
shareholders to be unhappy with a decision; it is quite another thing to say that litigation
was in the circumstances reasonably contemplated. …I do not think it follows from the
facts that an extraordinary general meeting here was being called in order to approve a
transaction that the board was unanimously recommending that litigation could be said
to be in reasonable contemplation. Even if it were shown that there were circumstances
which made it appropriate to conclude that litigation was in reasonable contemplation on
18th September or 8th October (or any other date in 2008), it does not follow that all legal
advice taken from that date by the board was advice in defence of or in connection with
that contemplated litigation. In my judgment…it is only advice of the latter type, advice
which was obtained by the company to enable it to carry on with litigation, advice which
was in connection with that dispute, advice in defence of the contemplated litigation,
which falls within the exception to the general rule, and that is privileged against the
shareholders.”105
Another situation in which the termination of a joint interest gives rise to issues 6-066
concerning privileged information was explored in TSB Bank Plc v Robert Irving
& Burns (a firm) (Colonia Baltica Insurance Ltd, third party).106 Here, solicitors
were appointed by underwriters pursuant to the terms of a professional indemnity
policy to represent Burns in defending a negligence action. Initially, no policy
coverage issues arose. But this issue was reconsidered some months later when
Burns’ representative (in ignorance that coverage issues were being revisited) was
effectively cross-examined by counsel instructed by the solicitors, in the wake of
which underwriters were advised that cover could be repudiated. When it was,
Burns sued the insurers to enforce the indemnity. In their defence, the insurers relied
on comments made by Burns’ representative at the conference. Burns applied to
strike out these parts of the defence.
The question arose as to whether, and if so when, the solicitors’ joint retainer by 6-067
Burns and the insurer terminated, so ending Burns’ implied waiver of privilege, in
favour of the insurers, of anything said to the common adviser. Morritt L.J. held
that:
“…the waiver of privilege implicit in the joint retainer extends to (a) all communica-
105 [2015] EWHC 2681 (Ch) at [20]–[21].

106 [2000] 2 All E.R. 826. Burns was applied in Northern Ireland in Barkley v Whiteside [2004] NIQB
12.
[609]
tions made by the insured to the solicitors down to such time as an actual conflict of inter-
est emerges, and (b) to all communications made by the insured to those solicitors after
the notification by the solicitors to the insured of such conflict and the lapse of such further
time as the insured reasonably requires to decide whether to instruct separate solicitors.”107
6-068 On the facts of this case, an actual conflict of interest had emerged prior to the
conference with counsel. That conflict was not notified to the insured with the result
that Burns’ waiver of privilege did not extend to the communications made at the
subsequent conference and reference to them in the insurers’ defence was struck
out.108
6-069 Paying for legal advice out of company or trust funds—the modern rel-
evance The issue of whether trustees (and others) have to have paid for legal
advice out of their own resources, and not the estate’s, in order to maintain a claim
to privilege against a beneficiary, was referred to in Talbot v Marshfield (as to which
see fn.34 above). It remains the case, as some of the modern authorities referred to
in fn.34 show, that this principle still prevails, given that the trustees’ costs in hostile
litigation with beneficiaries are not paid for out of the trust estate but instead fol-
low the event—as described in authorities such as McDonald v Horn [1995] I.C.R.
685.
6-070 But what if, in addition, the successful trustees obtain an order that allows some
of their costs to be paid by way of indemnification from trust funds? In the New
South Wales Supreme Court decision of Rollo Ventry Wakefield Gray v BNY Trust
Company of Australia Limited (formerly Guardian Trust Australia Limited),109 the
trustee defendants obtained an order after the conclusion of litigation that entitled
them to recoup their costs of legal advice from the trust estate. The unsuccessful
beneficiary sought disclosure of the trustees’ privileged advice. Begin C.J. held:
“There is no doubt that at the time the documents were created in relation to the main
proceedings in which the plaintiff was suing the defendant the communications were
privileged. …The defendant was also entitled to be indemnified out of the assets of the
Estate for its costs. This does not in my view mean that the plaintiff has a proprietary inter-
est in the documents in the sense that the cases recognise beneficiaries’ entitlement to ac-
cess trust documents. These documents were not for the benefit of the plaintiff. They were
documents created for the purpose of the defendant defending itself against the unjusti-
fied litigation against it by the plaintiff. The fact that an order was made that the plaintiff
107 [2000] 2 All E.R. 896 at 834. Tuckey L.J. emphasised, at 835–836, that the waiver of privilege
implicit in a joint retainer continues where there is merely a possible conflict of interest. Since it is
in the interests of insureds and insurers for solicitors to be able to accept a joint appointment, it is
only where an actual conflict of interest arises that the waiver comes to an end.
108 For another insurance context where a conflict of interest arose in relation to privileged documents,
see North and South Trust Co v Berkeley [1971] 1 W.L.R. 470. Here, insurance brokers were
instructed by underwriters to obtain an assessor’s report for them, which the broker subsequently
refused to show to his principal, the insured. The underwriters denied liability and in the ensuing
proceedings the insured sought a copy of the assessor’s report from the brokers. The underwriters
sought an injunction against the brokers to restrain them from supplying a copy to the insured.
Donaldson J. granted the injunction. Although the brokers were at risk of a claim for damages by
the insured, in so far as the brokers acted for the underwriters, they were not acting in discharge of
any duty towards the insured who was not entitled to the report commissioned by the underwriters
via the brokers. See also Anglo-African Merchants Ltd v Bayley [1970] 1 Q.B. 311. Donaldson J.
suggested his decision in Berkeley was not in conflict with Anglo-African although it had to be said
that obiter comments by Megaw J. (at 321) were more favourable to the insured’s position than the
decision in Berkeley.
109 [2009] NSWSC 789.
[610]
pay the defendant’s costs coupled with an order of its entitlement to indemnification, does
not in my view convert the privileged advice received by the defendant to defend itself
into an advice for the benefit of the plaintiff and thus a trust document to which the
plaintiff is entitled to access.”110
When it comes to companies and partnerships, there has been very little case law 6-071
on the consequences of legal advice being paid from corporate or partnership funds,
albeit the cases concerning companies and shareholders make reference to this
point, often in passing. Indeed, even in the recent decision in Sharp v Blank, Nugee
J. in a corporate context observed that:
“The foundation, as I understand it, of the general rule is the same as the foundation of
the similar general rule that applies in the case of trustees and beneficiaries. Just as a
trustee who takes advice as to his duties in relation to the running of a trust, and pays for
it out of the trust assets cannot assert privilege against the beneficiaries who have,
indirectly, paid for that advice, so too a company taking advice on the running of the
company’s affairs and paying for it out of the company’s assets cannot assert a privilege
against the shareholders who, similarly, have indirectly paid for it.”111
However, despite occasional judicial references to the question of payment and 6-072
its impact on privilege, the guiding principle as to the right of disclosure nonethe-
less seems to depend on whether the parties’ interests are aligned, so that the ques-
tion of payment—which in the case of a company, inevitably comes out of corporate
funds—has become irrelevant to the availability of the privilege. The possibility that
payment from trust (and even partnership) funds of a privileged opinion is
conclusive of the right of access on the part of a beneficiary (or a partner) was al-
luded to in State of South Australia v Barrett by the Full Court of the Supreme Court
of South Australia, which refused to apply such reasoning in a corporate context.
This decision concerned an appeal against an order directing production of a series
of documents, being legal advice with respect to aspects of transactions which were
the subject of litigation that involved allegations of breaches of duty and breaches
of trust and statutory obligations by the directors of a bank (the eight respondents)
as a consequence of entry into certain commercial transactions. The respondents
argued that they were entitled to see the bank’s documents because they were
brought into existence in circumstances which gave rise to a joint privilege between
the bank and the respondents. In support of this argument the respondents relied on
well-known corporate authorities. Olsson J. said:
“The dicta upon which he [that is, Chitty J in Gouraud v Edison Gower Bell Telephone
Co of Europe (1888) 57 LJ Ch 498] relied were directed towards situations in which docu-
ments are brought into existence as a consequence of expenditure from a common fund
in which both parties have a beneficial interest and which are expressly raised in their
common interest. …I have some doubt as to what is there said can be considered good
law in light of more recent authorities—the more so as the reasoning is said to be based
upon partnership law and actions against trustees by a cestui que trust, the principle be-
ing that a party cannot resist production of documents which have been obtained by means
of payment from the moneys belonging to the party applying for their production. With
all due respect, it is difficult to perceive a parity of logic between that situation and the
110 [2009] NSWSC 789 at [54].

111 [2015] EWHC 2681 (Ch) at [9].
[611]
position of shareholders vis-a-vis a corporation, where the legal relationships are quite
different.”112
6-073 In the same case, Mullighan J. said:

“Our attention was also drawn to cases which state the principle that a party cannot resist
production of documents which have been obtained by means of payment from moneys
belonging to the party applying for their production, eg a cestui que trust. In Gouraud v
Edison Gower Bell Telephone Co of Europe (1888) 57 LJ Ch 498 Chitty J applied this
principle between shareholders and the directors of a company with respect to confidential
communications between the company and its solicitors for the purpose of obtaining legal
advice in connection with the subject matter of the action brought on behalf of the
shareholders against the company. In Woodhouse & Co Ltd v Woodhouse (1914) 30 TLR
559, the Court of Appeal acknowledged the principle between shareholder and company
but held that it did not apply where the interests of the company and the shareholders were
adverse. In my view this principle could not apply in the present circumstances between
a corporation and its former directors who are being sued by the corporation and whose
interests are clearly adverse.”113
6-074 Clearly, the payment rule does not apply in a corporate context, and so it is
submitted it should not apply in partnership context either—it being preferable that
the rule is applied only where the parties sharing the joint interest continue to have
aligned interests. Partnerships in dispute with fellow partners should, by analogy
with the position of companies, be allowed to seek out of partnership funds advice
over which they can claim privilege as against those with whom they are in dispute.
This conclusion may carry the small unfairness that in the latter case the minority
partner interests are in effect contributing towards the costs of the advice obtained
for the benefit of the majority interests, and further that the minority may be un-
able to get the partnership to pay for its legal costs, but this merely reflects the
practicalities of modern partnership practice, especially in large professional service
firms.
6-075 Final considerations Although the nature of the beneficiary’s entitlement to

disclosure of a privileged trust document is aptly described as one of “joint inter-
est”, it is clear that to apply all of the consequences of such an interest suggested
at the outset of this Chapter (para.6-003) would require some qualification here.
First, as per the Talbot decision and as discussed above, the beneficiary’s entitle-
ment to privileged trust documents does not arise where the document concerns the
very issue in dispute between them and was created for the purposes of that dispute.
Secondly, it is probably the case, albeit not yet confirmed by any case law, that the
trustees would be entitled to waive privilege over legal advice obtained by the trust
before its disclosure to a beneficiary without seeking that beneficiary’s consent. It
would probably be argued that so long as the trustee was waiving privilege for a
legitimate trust purpose, then to seek the beneficiary’s consent to that purpose would
be unnecessarily cumbersome. (Having said that, one might note that a particular
type of trustee—the trustee in bankruptcy—is not entitled to waive the bankrupt’s
privilege without his consent: see the discussion at Section 4 below.) Once
disclosure to the beneficiary has occurred, provided privilege has not been lost, for
example by using the document in open court, it is submitted that both parties’
112 (1995) 64 S.A.S.R. 73 at [78].

113 (1995) 64 S.A.S.R. 73 at [83].
[612]
COMMON INTEREST PRIVILEGE
consent would be needed for waiver thereafter. Lastly, it is not the case, it is submit-
ted, that the consent of all beneficiaries would be needed for the trustee to make
disclosure of a privileged document to one beneficiary alone.
3. COMMON INTEREST PRIVILEGE

Common interest privilege is a recently developed—or arguably revived— 6-076
concept that is principally concerned with the sharing of a privileged communica-
tion between parties who share a common interest, as opposed to a joint interest.
Where the communication so shared is concerned either with the subject matter of
the common interest or litigation concerned with the common interest,114 then the
party sharing the communication does not thereby lose his right to assert privilege
over it (save as against the party with whom it is shared); furthermore, the party with
whom the communication is shared can assert the same privilege over it as against
a third party. This ability to assert privilege on the part of the receiving party is
referred to in the case law as “common interest privilege”, and in this scenario some
commentators have described the privilege as operating as a “shield”.115
A common interest is, broadly, one in which the parties have the same or a very 6-077
similar interest at stake, but not the exact same one from a legal perspective—for
example a lease interpretation issue that affects equally several tenants but with
independent interests in the same tenancy block. As indicated in the survey of joint
interests in Section 2 above, there is a tendency for judges to refer to joint and com-
mon interests interchangeably (thus somewhat undermining any attempted distinc-
tion between the two).
As common interest privilege has developed, the courts have accepted that, as 6-078
with some of the commercial joint interest cases considered above, the common
interest can give rise to an entitlement on the part of one party to the interest to ac-
cess to privileged documents that are held by another who shares that same interest.
The challenge is to identify when common interest can be used in this way—as a
sword116 —because it is not every relationship which supports a claim to common
interest privilege which also gives rise to a right to obtain disclosure of the other’s
relevant privileged materials.117
As originally revived in 1981, common interest privilege was seen as an aid to 6-079
114 A Canadian court has observed that the existence of the relevant common interest is not dependent
on a reference to the common interest in the contents of the documents exchanged between them—
the focus necessarily is on the relationship between the parties claiming that interest. In other words,
any requirement that the documents the subject of the common interest privilege must themselves
reference the joint endeavour in order to be protected by the privilege is unduly restrictive. Accord-
ingly, it is the reason the document is exchanged which should be determinative as to whether com-
mon interest privilege arises, not its particular contents, since this could result in documents entitled
to being considered privileged being disclosed. See Sable Offshore Energy Project v Ameron
International Corporation (2015) NSCA 8, where the Nova Scotia Court of Appeal gave (at [67])
as an example of its concerns the type of problem which could arise with the application of a docu-
ment based approach: “In 2008, two adverse parties settle a litigious dispute. They together now
decide to seek recovery from a third party to re-coup their respective losses. To facilitate that ef-
fort, one party shares with the other a previously undisclosed opinion it had received in 2005 from
an expert for the purposes of the now settled litigation. Clearly, one would not necessarily expect
to see in that 2005 report statements which specifically refer to the joint position of the then feud-
ing parties, against their now common foe.”
115 See Aikens J. in Winterthur Swiss Insurance Company v AG (Manchester) Ltd [2006] EWHC 839
(Comm) at [78], citing Phipson on Evidence 16th edn (2005), para.24-03, p.649.
116 Per Aikens J., [2006] EWHC 839 at [79], again citing Phipson.
117 Per Moore-Bick J.in Commercial Union Assurance Co v Mander [1996] 2 Lloyd’s Rep. 640 at 647.
[613]
litigation. Indeed, as one judge described it, it was seen as an extension of the
principles relating to communications between co-plaintiffs or co-defendants for the
purposes of an action.118 As it has developed since then, such analogies can be
misleading, as common interest privilege has been accepted as being available in
a non-contentious context. Additionally, case law has developed a more convinc-
ing explanation for the privilege which focuses on the existence of a duty of
confidentiality owed by the receiver of the privileged information to the original
beneficiary of the privilege,119 as well as the fact of sharing privileged communica-
tions between parties who have a common adversary.
6-080 Interestingly, this approach to common interest privilege leads to the conclu-
sion—at least where it is used as a shield—that its importance has been somewhat
diminished by the English courts’ increasing willingness to recognise a client’s right
to share his privileged materials with a third party, with whom there is not neces-
sarily a common interest in the sense discussed below, without there being any loss
of privilege. This aspect of privilege is discussed in Ch.7. Of course, in that situa-
tion the receiver does not enjoy the independent right to assert the provider’s
privilege that common interest privilege can confer. In this regard, situations where
the privilege holder shares privileged advice in the course of, say, a corporate
transaction with other non-legal professional advisers may thereby create a ring of
confidence between them all which the privilege holder can enforce, but it does not
follow that a common interest for the purposes of privilege arises between all the
advisers and the privilege holder: see for example Nederlandse Reassurantie Groep
Holding NV v Bacon & Woodrow.120 This suggests then that the real importance of
common interest privilege lies in the ability to force access to the privileged docu-
ments held by another where the nature of the common interest relationship war-
rants this.
Common interest privilege: the principles

6-081 Common interest privilege came to prominence with the judgment of the Court
of Appeal in Buttes Gas & Oil Co v Hammer (No.3).121 The privilege was described
there by Lord Denning MR as:
Note Briggs J.s comments discussed at para.6-119 below.

118 See Robert Hitchins Ltd v International Computers Ltd [1996] EWCA Civ 1163 (10 December 1996)
(discussed in detail in Ch.3, Section 10), where Simon Brown L.J. concluded that a third party, with
whom a defendant settled on terms that the third party would share his privileged draft witness state-
ments with him, could assert the third party’s privilege over those statements as against the plaintiff
in part because a common interest existed between them. Note, however, that Peter Gibson L.J. could
not accept that a common interest can exist in respect of documents—the draft statements—
prepared at a time when the defendant and third party were engaged in hostile litigation against each
other.
119 See Colman J. in Formica Ltd v Secretary of State (acting by the ECGD) [1995] 1 Lloyd’s Rep. 692,
discussed below.
120 [1995] 1 All E.R. 976.
121 [1981] Q.B. 223. Some older decisions, such as Reynolds v Godlee 4 K & J 88 can be interpreted
as embracing principles that were forerunners of common interest privilege as formulated by Lord
Denning. Aikens J. in Winterthur Swiss Insurance Company v AG (Manchester) Ltd [2006] EWHC
839 (Comm) at [76] said: “The concept of ‘common interest’ privilege derives from Jenkyns v
Bushby, (1866) L.R. 2 Eq 547 a decision of Kindersley VC. He held that a case for the opinion of
counsel, prepared in relation to separate litigation for the benefit of the predecessor in title to the
defendant in the action, but after the present dispute had arisen, was privileged from production in
the later action.” Aikens J. went on to say that the Court of Appeal in Buttes Gas “developed” this
concept.
[614]
“…a privilege in aid of anticipated litigation in which several persons have a common
interest. It often happens in litigation that a plaintiff or defendant has other persons stand-
ing alongside him—who have the self-same interest as he—and who have consulted
lawyers on the self-same points as he—but these others have not been made parties to the
action. Maybe for economy or simplicity…[all] exchange counsel’s opinions. All collect
information for the purpose of litigation. All make copies. All await the outcome with the
same anxious anticipation…because it affects each as much as it does the others…All are
the subject of the privilege in aid of anticipated litigation, even though it should transpire
that, when the litigation is afterwards commenced, only one of them is made a party to
it.”122
Brightman L.J. commented in the same decision that where two parties: 6-082
“…exchange information for the dominant purpose of informing each other of the facts,
or the issues, or advice received, or of obtaining legal advice in respect of contemplated
or pending litigation, the documents or copies containing that information are privileged
from production in the hands of each.”123
Lord Denning in Buttes Gas offered a number of examples of situations where 6-083
he thought common interest privilege could arise. He suggested that the owners of
adjoining houses who complained of a nuisance which affected them equally and
who took legal advice and exchanged relevant documents could both avail
themselves of the privilege in aid of litigation, even though one only of them com-
menced legal proceedings to try to prevent the nuisance. Similarly, where an author
who wrote a book which, after publication, was found to contain a libel or to
infringe a copyright, then if both author and publisher took legal advice and
exchanged documents but only one of them was made a defendant to the
complainant’s action, nonetheless both could avail themselves of the other’s
privilege. A further example given by Donaldson L.J. was that of the landlord who
took proceedings against a particular tenant resident in a block of flats concerning
a term of the lease which was common to all the tenancies. In his view, the tenant
would be entitled to circulate all other tenants in confidence with a copy of his
counsel’s opinion as to their rights under the lease. If the landlord were then to join
another tenant as an additional defendant, Donaldson L.J. did not think that he
would be able to obtain production of the copy of the opinion passed to him by the
first tenant.
The Court of Appeal was prepared to recognise a common interest privilege on 6-084
the unusual facts of the Buttes Gas case. Here, two rival American oil companies
claimed oil drilling rights at the same location in the Gulf region, each claiming
under mandates conferred by rival local rulers. The plaintiff’s concession had been
granted by reference to the territorial waters of Sharjah, whose ruler subsequently
publicised a decree which asserted a 12-mile nautical limit for his territorial waters
which covered the disputed location. The defendant oil company asserted that the
decree had been fraudulently backdated. These issues all featured in an action for
slander in which the defendants made a discovery application for documents held
by the plaintiffs and which had come into their hands either directly or indirectly
from the Ruler of Sharjah. Lord Denning MR and Brightman L.J. were prepared
to recognise these documents as being privileged in the hands of Buttes Oil (to the
extent that they were privileged in the hands of the ruler of Sharjah). Buttes Oil and
122 [1981] Q.B. 223 at 243.

123 [1981] Q.B. 223 at 267.
[615]
the ruler had identical interests in that both wanted to make sure that the oil fields
of Sharjah were as extensive as possible, and they had exchanged documents in the
context of possible litigation arising in respect of the disputed drilling rights.
6-085 As to the underlying principles which would assist a court to recognise a com-
mon interest which supports the privilege, Lord Denning spoke in terms of two or
more parties having the “self same interest” so that the courts should, for the
purposes of discovery, treat all the interested parties “as if they were partners in a
single firm or departments in a single company”.124 Donaldson and Brightman
L.JJ.125 both spoke in terms of the need for the parties claiming the privilege to share
not only a common interest but also a common solicitor.126
6-086 The requirement for a common solicitor mentioned in Buttes Gas has gradually
fallen away. In The “Good Luck”,127 Saville J. regarded it as a necessary condition
of common interest privilege that the sharing parties could, had they so chosen, have
used the same lawyer, even if they did not actually do so. In The “Good Luck”
Saville J. was concerned with the defendant’s challenge to the plaintiff bank’s claim
to privilege in respect of documents which contained or revealed details of the legal
advice which the owners of the Good Luck had received from their lawyers about
the owners’ own claim against the defendants. The owners had shared this legal
advice with the plaintiff and their lawyers. Saville J. did not regard the lack of a
common solicitor as a bar to a claim of common interest privilege. Instead, he
identified the requirement for:
“…an identity of interest so close that the parties concerned could (had they chosen to do
so) have used the same solicitor or other lawyer.”128
6-087 Indeed, he interpreted the Buttes Gas decision, particularly the judgment of Lord
Denning, as envisaging a common interest privilege arising only in cases where the
interest of the parties were so close that they could properly be regarded (for
discovery purposes) as one and the same. In the case before him, such identity of
interests did not in fact exist even though the plaintiffs had the greatest possible
interest in the owners’ action against the defendants. Since the plaintiffs were credi-
tors of the owners and their interest was to recover any fruits of the owners’ ac-
tions so as to reduce or at least service their indebtedness, whereas the owners’
interests were to prosecute the litigation with a view to reducing their indebted-
ness to the plaintiff bank, their respective interests could not have been dealt with
by the same solicitor.
6-088 It is tempting to suggest that this decision might be decided differently today,129
for not only have subsequent decisions, all at first instance, indicated that the abil-
124 [1981] Q.B. 223 at 243.

125 [1981] Q.B. 223 at 252 and 267.
126 From only about six months after the date on which the court in Buttes Gas determined that litiga-
tion could first be contemplated did the ruler and Buttes instruct the same solicitor. Lord Denning
thought it did not matter that there was a period of six months when the parties had different
solicitors.
127 Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda), “The Good Luck” [1992]
2 Lloyd’s Rep. 540.
128 Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda), “The Good Luck” [1992]
2 Lloyd’s Rep. 540 at 542.
129 But see the Australian decision in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty
Ltd (No.2) [2014] FCA 481, discussed below. And note also Lee v South West Thames Regional
Health Authority [1985] 1 W.L.R. 845 decided in a non-insurance context, of a claim to common
interest privilege failing (albeit one that has been criticised: see further fn.155 below).
[616]
ity to instruct the same solicitor is no longer an essential requirement, they have also
recognised a common interest even where elements of the parties’ relationship is
at odds. As Rix J. commented in Svenska Handelsbanken v Sun Alliance and
London Insurance Plc:
“…it is clear that the fact that differences may arise between parties of whatever close-
ness of interest, such as to prevent them from at all times using the same lawyers, or such
as may indeed even cause them to find themselves ultimately on opposite sides of litiga-
tion, does not necessarily mean they cannot be parties with a common interest for the
purpose of this concept…”130
This illustrated by the decision in The “World Era” (No.2),131 where the parties 6-089
who shared the requisite common interest engaged in a short dispute between
themselves. The facts were that charterers claimed damages from vessel owners in
circumstances where they contended they had made a charter party as agents for
principals. The charterers’ solicitors, with their clients’ consent, also accepted
instructions from their clients’ principals in relation to the conduct of the arbitration.
However, before it was concluded, a dispute broke out between them concerning
the conduct of the arbitration, which led to the principals issuing a writ and seek-
ing an injunction against the charterers. That dispute duly settled, whereupon the
charterers’ solicitors resumed taking instructions from the principals in relation to
the arbitration. Phillips J. held that the charterers and their principals had at all times
a common interest in the claim being advanced by the charterers in the arbitration,
and that that common interest did not come to an end simply because a dispute arose
between them as to who should have the conduct of the proceedings. On this point,
Phillips J. endorsed the arbitrators’ comments:
“The relationship between parties with a common interest in proceedings is not always
harmonious: they may quite legitimately hold different views about who is to conduct the
litigation and how. Such views may be strongly held and vigorously expressed. But the
mere existence of such disagreements does not necessarily entail the conclusion that the
parties no longer have a ‘common interest’ in the proceedings themselves.”132
In Formica Ltd v Secretary of State (acting by the Export Credits Guarantee 6-090
130 [1995] 2 Lloyd’s Rep. 84. See also Aikens J.’s decision in Winterthur Insurance Company v AG
(Manchester) Ltd (in liquidation) [2006] EWHC 839 (Comm) and especially at [78]; and Lewison
J. in Penny v Montagu Private Equity LLP [2010] EWHC 2354 (Ch) who, addressing a comment
by Patten J. in Dadourian Group Int Inc v Simms [2008] EWHC 1784 (Ch) that parties must share
a common solicitor for common interest privilege to be available, held after a close analysis of the
Buttes decision that the privilege was not liable to be defeated simply because the sharing parties
had consulted different solicitors (at [13]). In two Irish cases, Moorview v First Active Plc [2008]
IEHC 274 and the Irish Supreme Court decision in Redfern Ltd v O’Mahony [2009] IESC 18, com-
mon interest privilege was found to exist despite the fact that the parties were not served by the same
set of solicitors, nor could they have been. In Hansfield Developments v Irish Asphalt Ltd [2009]
IEHC 420 McKechnie J. noted at [54]: “…I would therefore hold that the common putative solici-
tor test does not have to be satisfied before common interest privilege can arise. That is not say that
whether the parties could be represented by the same solicitor is not a relevant consideration, but it
will in no way be determinative. It is merely a factor to be taken into account in deciding whether
the parties were sufficiently closely related that the disclosure should not amount to an implied
waiver.” See also Sports Direct International Plc v Minor [2015] IEHC 650.
131 Leif Hoegh & Co A/S v Petrolsea Inc; The “World Era” [1993] 1 Lloyd’s Rep. 363.
132 Leif Hoegh & Co A/S v Petrolsea Inc; The “World Era” [1993] 1 Lloyd’s Rep. 363 at 366. The com-
mon interest privilege did not however protect from production, upon the owners’ discovery ap-
plication, of the writ and affidavit relating to the injunction proceedings: see Phillips J., [1993] 1
Lloyd’s Rep. 363 at 386. In R. v Trutch and Trutch [2001] EWCA Crim 1750, a claim for common
[617]
Department)133 Colman J. noted that Lord Denning’s analysis in Buttes Gas of

partners in a single firm or a department in a single company, and Saville J.’s
yardstick in The “Good Luck” of the common solicitor, were both useful ways of
testing for the existence of an interest common to both parties so as to allow both
to assert the same privilege. In his view, however, the real rationale for this privilege
is a sharing of information in which there is not only a common interest but also a
particular type of relationship which gives rise to a duty of confidence which the
law will protect. As Colman J. put it:
“The protection by common interest privilege of documents in the hands of someone other
than the client must pre-suppose that such third party has a relationship with the client and
the transaction in question which, in relation to the advice or other communications, brings
that third party within that ambit of confidence which would prevail between the legal
adviser and his immediate client…[T]he essential question in each case is whether the
nature of their mutual interest in the context of their relationship is such that the party to
which the documents are passed receives them subject to a duty of confidence which the
law will protect in the interests of justice.”134
6-091 However, quite apart from sounding like an expression of the English courts’
willingness to permit a confidential sharing of privileged documents generally (as
discussed in Ch.7), this as a test for determining when common interest privilege
is available is, with respect, of limited practical use since it is far from clear how a
qualifying relationship between the client and third party is to be identified in new
situations. Ultimately, as Aikens J. noted in Winterthur Swiss Insurance Company
v AG (Manchester) Ltd:
“The cases have refused to be prescriptive about the circumstances in which the two par-
ties will have a sufficient ‘common interest’ in the particular communications concerned.
The issue has to be decided on the facts of the individual case.”135
6-092 One area where a relationship of confidence more readily gives rise to a com-
mon interest relationship is found in various insured/insurer and insurer/reinsurer
interest privilege was rejected in respect of affidavits sworn as part of a settlement of civil litigation.
Bell J. held (at [22]) that the parties were opposing parties, with no common interest until the deed
of settlement and affidavits were made and communicated, and the litigation settled. Thereupon,
there was no opposing party in respect of whom privilege could be claimed. The Supreme Court of
New South Wales held in Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1995] 37 N.S.W.L.R.
405, that if the parties’ interests are potentially adverse, common interest privilege will not arise if
there is not the necessary unity of interest. Giles C.J. at 409–41: “What is important is that…two
persons interested in a particular question will not have a common interest for the purposes of com-
mon interest privilege if their individual interests in the question are selfish and potentially adverse
to each other. In such a case there will not be a necessary identity of interest.” See also Maritime
Steel and Foundries Limited v Whitman Benn & Associates Limited [1994] 114 D.L.R. (4th) 526 and
Todd v Novotny [1999] WASC 28.
133 [1995] 1 Lloyd’s Rep. 692.
134 [1995] 1 Lloyd’s Rep. 692 at 699. In Canada, Paperney J. noted in Re YBM Magnex International
Inc (2000) ABQB 256 at [20]) “It is now apparent that Lord Denning’s words need not be strictly
construed. That is, parties may have a common interest even if they do not have identical interests.
Moreover, despite language elsewhere suggesting that an appropriate test would be if parties have
or could have the same counsel, I do not find such a concept helpful (see, for example, Supercom
of California Ltd. v. Sovereign General Insurance Co. (1998), 1998 CanLII 14645 (ON SC), 37 O.R.
(3d) 597 (Gen. Div.) at 612). I do, however, accept the language from Supercom stating that ‘[c]om-
mon interest privilege implies the dynamic of parties sharing a united front against a common foe.’
(at 612).”
135 [2006] EWHC 839 (Comm) at [82].
[618]
situations, many of which are considered throughout this Chapter, for example
Commercial Union Assurance Co v Mander,136 Thus, in Guinness Peat Properties
Ltd v Fitzroy Robinson Partnership,137 an issue arose as to whether architects could
resist the application for discovery of a copy of their claim notification letter to their
professional indemnity insurers. The architects asserted that this was a privileged
communication, even though it had been brought into existence at the behest of the
insurers who were not parties to the action. Applying Buttes Gas,138 the Court of
Appeal held that the communication was protected by a common interest privilege
which they were entitled to assert.
Aside from identifying whether a particular relationship is one that can benefit 6-093
from the common interest privilege sharing principles, the second challenge is to
identify whether that relationship is also one in which one party to the common
interest is entitled to access to the other’s privileged documents as of right. Often,
this will be a matter of contract as between the two parties, as in Formica Ltd v
Secretary of State (acting by the Export Credits Guarantee Department), 139
discussed above. Colman J.’s remarks in that decision, quoted at para.6-090 above,
were deployed in Commercial Union Assurance Co v Mander140 to advance submis-
sions to the effect that a party could seek disclosure of privileged documents on the
grounds of common interest if he is a person in whose hands the documents would
have been privileged if they had in fact been disclosed to him by the beneficiary
of the privilege. Doubting that that was the intended effect of Colman J.’s judg-
ment in Formica, Moore-Bick J. held that the applicant had to establish a right to
disclosure which existed at the time the privileged communication occurred:
“I do not understand [Colman J] to be saying any more than that a party who seeks
disclosure of documents on the grounds of common interest is really claiming that at the
time the advice was sought he was within the ambit of the confidence because he was
interested in the subject matter of the advice in circumstances which gave him a right to
have access to them. He was not, as I read his comments, seeking to go further than that
and lay down a general rule as to the circumstances which will enable a party to bring
himself within the ambit of confidence for the purpose of obtaining disclosure.”141
Once more, there is no ready formula (where there is no relevant contractual basis 6-094
for this) for determining which type of common interest creates disclosure rights
and which does not. In Commercial Union, Moore-Bick J. said that although in
many cases a relationship between two parties which supports common interest
privilege will be one which also gives each of them a right to obtain disclosure of
confidential documents relating to the matter in which they are both interested, it
was easy to think of situations in which that would not be so. So, Moore-Bick J.
suggested, correctly it is submitted, that the sharing tenants in the example given
by Donaldson L.J. in Buttes Gas (see para.6-083 above) had no right to insist on
seeing the first tenant’s advice had the latter chosen not to disclose it. And while
his decision was concerned specifically with reinsurance contracts containing “fol-
low settlement” clauses, the tenor of the judgment in Commercial Union pointed
to the fact that a reinsurer may have a more general right to disclosure against an
136 [1996] 2 Lloyd’s Rep. 640.

137 [1987] 1 W.L.R. 1027, discussed in detail in Ch.3, Section 7.
138 [1981] 1 Q.B. 223.
139 [1995] 1 Lloyd’s Rep. 692.
140 [1996] 2 Lloyd’s Rep. 640.
141 [1996] 2 Lloyd’s Rep. 640 at 648.
[619]
insurer as a result of the commonality of interest that tends to exist between them.
As to this, the judge said:
“In my judgment a contract of reinsurance which contains a ‘follow settlements’ clause
does create a community of interest between insurer and reinsurer in the original claim
of a kind similar to that which was recognised in CIA Barca v Wimpey. That being so, the
insurers cannot withhold from the reinsurers on the ground of privilege documents brought
into being for the purposes of handling the original claim, even if they would be subject
to legal professional privilege as against a third party. It would follow, of course, that docu-
ments of that kind would be subject to common interest privilege in the hands of the
reinsurer if communicated in confidence to him. This seems to me to be consistent with
the view taken by Rix J of the nature of the relationship between insurers and reinsurers
in Svenska Handelsbanken v Sun Alliance and with the view of Colman J of the relation-
ship between the plaintiffs and the defendants in Formica v ECGD. …I was remind-
ed…that in the absence of a claims cooperation clause the reinsurer’s right in the ordinary
course to inspect the insurer’s documents relating to the handling of the original claim may
be limited…but I do not think that that is inconsistent with his having an interest in them
of a kind which will entitle him to disclosure in other circumstances, in particular pursu-
ant to the rules of court if at a later date there is litigation between the reinsurer and the
insurer to which they are relevant. …It is of interest in this context to see that in Svenska
Handelsbanken v Sun Alliance the original insurers felt themselves to be under an obliga-
tion to share with reinsurers advice obtained in relation to the claim, even though the
contract contained no formal ‘follow settlements’ clause. Nor do I think that the recogni-
tion of the reinsurer’s interest in the handling of the claim need erode in any way the
insurer’s right to obtain confidential legal advice concerning his own position, though it
will be necessary for him to ensure that the distinction between the common interest and
his personal interest (where they differ) is kept firmly in mind. I see no reason why that
need give rise to undue difficulty in practice, nor do I think that recognising the particular
interests of reinsurers under contracts in this form poses any widespread threat to the
established privilege attaching, to confidential communications between lawyer and cli-
ent generally…”142
6-095 In the Svenska143 decision referred to in the extract above, the plaintiffs had taken
out commercial mortgage indemnity insurance with Sun Alliance, the defendants.
The plaintiffs claimed under one such policy. In the course of the litigation they
sought discovery of documents which included the legal advice Sun Alliance had
obtained from their solicitors regarding the issues in dispute in the action and which
Sun Alliance had communicated to their reinsurers. One of the grounds on which
the application was resisted was that the advice fell within the doctrine of com-
142 [1996] 2 Lloyd’s Rep. 640 at 646-6-647. Ultimately the reinsurers’ application for access to Com-
mercial Union’s privileged documents failed. Since the reinsurers had pleaded that the contract of
reinsurance had been avoided, they sought to place the parties in the same position as if it had never
been made. As the reinsurers could not therefore rely upon the contract in order to found the basis
for seeking disclosure, they were unable to establish any other relationship with the insurers which
was capable of supporting a common interest in the subject matter of the documents they sought
([1996] 2 Lloyd’s Rep. 640 at 648). In Brown v Guardian Royal Exchange Assurance Plc [1994] 2
Lloyd’s Rep. 325, the Court of Appeal did not need to decide whether, where solicitors were
instructed on behalf of underwriters and their insured, there was a joint or common interest between
underwriters and insured that prevented the insured claiming privilege against the underwriters in
respect of the solicitor’s reports about his claim, the matter being determined by the terms of the
relevant insurance policy. However, the decision in TSB Bank Plc v Robert Irving & Burns (a firm)
(Colonia Baltica Insurance Ltd, Third Party) [2002] 2 All E.R. 826 proceeded, surely correctly, on
the basis that there was a joint retainer by insured and insurers such that there was a waiver of
privilege over such reports by the insured against the insurer.
143 [1995] 2 Lloyd’s Rep. 84.
[620]
mon interest privilege, with the result that disclosure to the reinsurers did not
amount to a waiver of privilege. The plaintiffs argued that there was an insuf-
ficient community of interest between Sun Alliance and their reinsurers; and that
there was some evidence there might even be conflict between Sun Alliance and one
or two of their reinsurers as to whether the reinsurance in question was binding. Rix
J. held:
“…it does seem to me that there is a very close community of interest between an insurer
and a reinsurer in general. No particular contractual provision is relied upon by [the
defendant’s deponent],144 rather she says that Sun Alliance felt obliged to communicate
the relevant advice to their reinsurers. In my judgment that is something which I can ac-
cept as being the circumstance under which, and the purpose for which that advice was
communicated. It is, in effect, a recognition of de facto obligations in circumstances
where, in the absence of policies, the precise legal obligation may not have been clear.”145
A further decision here is Winterthur Insurance Company v AG (Manchester) 6-096

Limited (in liquidation),146 in which ATE was marketed to potential claimants by
TAG as agent for the insurer, NIG. Before an ATE policy was issued, a claimant
(“the TAG claimant”) had his claim vetted by a specialist law firm and then by a
panel firm of solicitors that would conduct his litigation, if the claim passed the
vetting. Only at that stage would the ATE policy be issued. The ATE scheme failed
and in litigation brought by the scheme underwriters against TAG and the various
solicitors involved in the vetting, a question arose as to whether NIG was entitled
to rely on common interest privilege as a sword so as to have access to documents
that would otherwise be the subject of privilege in favour of the TAG claimants. The
TAG claimants submitted not, since there was not and never had been a com-
munity of interest between them and NIG because there was always a tension
between them in that the former would wish to advance his case, but the latter
would wish to minimise its potential liability. Although his answer depended to an
extent on various contractual provisions, Aikens J. disagreed. Holding that the
answer to the question, whether the relationship between the TAG claimant and NIG
as ATE insurer was one that could give rise to a common interest that can found
“common interest privilege”, had to be yes, he continued:
“The second question is whether there is a sufficient ‘common interest’ as between the
insurer and the insured at the time that the relevant documents were created. In my view
the relationship of the TAG claimant and indemnity insurer will create a sufficient com-
munity of interest in the documents that were created for the purpose of deciding whether
ATE insurance should be granted. Further, that community of interest will continue in rela-
tion to documents produced to pursue the TAG claimant’s case. I do not accept [counsel’s]
argument that there was necessarily always a tension between the two sides. First, the
insured and insurer are under a duty to act in good faith towards one another because the
ATE insurance contract is one of ‘utmost good faith’. …Secondly, in practical terms, the
insurer will wish to see the insured’s claim being successful. The more successful the
144 Presumably because the reinsurance contracts rested on slips only, no policies having been brought
into existence.
145 [1995] 2 Lloyd’s Rep. 84 at 87. Although this was a case in which the insurers volunteered docu-
ments to the reinsurers, the judge also commented that “…where there is, either under legal compul-
sion or in practical terms, a need for legal advice to be shared confidentially with parties with a com-
munity of interest, then the law should not be astute to find distinctions between, for instance in this
case, a reinsurer and the reinsured on the one hand, and an assured and his legal liability insurers
on the other”.
146 [2006] EWHC 839 (Comm).
[621]
claim, the less likely the insurer will have to pay any indemnity under the policy terms.
Thirdly, a number of documents demonstrate that it was always intended that the insur-
ers would see the insured’s documents and that he must allow the insurer to see them if
the insurer wished to do so for the purposes of pursuing the TAG claimant’s claim.
…Documents that are obtained in the exercise of common interest privilege obviously
cannot be used for any purpose the applicant wishes. But it is clear that they can be used
in litigation between the two parties who at an earlier stage had a ‘common interest’, as
happened in Commercial Union Insurance Co PLC v Mander. It seems to me that it is a
legitimate extension to allow use of the documents in litigation between one of the two
parties that had a common interest at the time the document was created, (say A and B),
and a third party where B (in this case the TAG claimant) is under an express contractual
obligation to A (in this case, NIG) in the wide terms set out in Condition 6 of the ATE
Policy wording. Therefore, NIG can rely on ‘common interest privilege as a sword’ to
have access to the pre and post-ATE Policy documents in the hands of the Panel Solici-
tors that would otherwise be subject to the TAG claimants’ privilege.”147
6-097 Not every situation involving an insured and their insurer will give rise to the
necessary commonality that facilitates the privilege, as the Federal Court of
Australia’s decision in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners
Pty Ltd (No.2)148 demonstrates, albeit the decision was dependent on the terms of
the relevant insurance policy. Here, the court was concerned with a dispute arising
out of the purchase of shares in a business by the insured who had taken out insur-
ance policies against breaches of the warranties given by the vendors as part of the
sale agreement. In the course of the insured’s proceedings against the vendors in
which they claimed that there had been misrepresentations and breaches of warran-
ties in the sale agreement, the vendor sought disclosure of privileged information
which the insured had disclosed to their insurers. That disclosure arose in respect
of a claim that the insured made under a warranty policy for indemnity in respect
of the same breaches. The vendors argued that there could be no common interest
between insurer and insured because it was in the interests of the purchasers, in rela-
tion both to the claim made to the insurer and the claim made against the vendors,
to establish that the vendors engaged in misleading or deceptive conduct in and
around the sale. But, in relation to the same subject matter, and so as to avoid li-
ability, they argued it was also in the interests of the insurer and of the vendors to
establish that the vendors did not engage in that wrongful conduct.
6-098 The purchasers had no answer to that analysis and so the judge proceeded to as-
sess their claim for common interest privilege on the basis that that analysis was
correct. That resulted in a rejection of the claim. First, there was no common inter-
est in assessing the liability of the vendors which was sufficient to counter the
disparity of interests upon which the purchasers relied. Secondly, the judge was
unpersuaded by the contention that a commonality of interests arose from the
insurer’s rights of subrogation under the policy, since there was no evidence that
at the time the claim was made the insurers were likely to provide indemnity. More
significantly, the insurer’s right of subrogation under the policy was highly quali-
fied and limited to an event of fraud by the vendors. No allegation of fraud was
147 [2006] EWHC 839 at [113]–[118]. For a similar insurer type decision, see Accident Exchange Ltd
v McLean [2018] EWHC 23 (Comm), discussed below.
148 [2014] FCA 481.
[622]
raised by the purchasers and the evidence before the court did not suggest that any
such allegation was then in contemplation.149
An interesting example, also from Australia, of a situation in which a claim for 6-099
common interest privilege was unsuccessfully asserted in a partnership context, is
Rich v Harrington.150 Here, a partner in an accountancy firm, PwC, sued the firm
for discrimination, her complaints being based upon the conduct of other partners.
The question arose as to whether there was a common interest between one of those
partners, E, and the firm in respect of legal advice which E had himself obtained
for his own benefit (and not for PwC) because he was concerned about his own
reputational damage arising upon the complaints. E had shared that advice
confidentially with PwC’s Australian senior partner. The complainant sought
disclosure of that advice, to which PwC asserted that there was a common interest
between them and E such that the advice did not need to be disclosed.
Although litigation between the complainant and PwC was recognised by all 6-100
concerned to be a real prospect, a complicating feature of the case was that the
complainant remained a partner in the firm until she commenced proceedings
against the firm, sometime after that real prospect arose. At the same time, PwC had
been conducting an internal review of the complaints made by the complainant.
Since that review was being assumed to be being conducted bone fide, the court
held that the interests of PWC were not wholly aligned with those of E. This was
not therefore a paradigm case of common interest because they were partners in a
single firm. Branson J. therefore held:
“While all partners in PwC (other than [the complainant]) had a common interest in suc-
cessfully defending the litigation which it was anticipated that [the complainant] might
institute, prior to the institution of any proceeding there were issues arising from [the
complainant’s] allegations in relation to which [E] had a selfish interest. The interest of
PwC as a firm at that time was to conduct a fair review which included accepting the pos-
sibility that [the complainant’s] allegations, or some of them, had substance. [E’s] inter-
est was in exonerating himself in respect of [her] allegations against him…I conclude that,
to the extent that [E] obtained legal advice concerning questions in which his interests
were selfish, and potentially adverse to the interests of PwC, he and PwC did not share
common interest privilege in that advice.”151
However, since that advice had been shared by E on a confidential basis to PwC’s
senior partner, E had not waived his privilege in that advice and was thus entitled
to assert it.
Legal advice
The Svenska decision noted above is also important because it extends common 6-101
interest privilege beyond the original “aid in litigation” concept to cover the situa-
149 [2014] FCA 481 at [72] and [73]. The judge added (at [73]): “The absence of any significant com-
monality of interests as between the [purchasers] and the Insurer and the potential for disparate and
competing interests by reason of the claim under the Policy provides a backdrop which, in my view,
is significant. I take into account [the purchaser’s] duty of disclosure under the policy but…it was
not contended that disclosure of privileged material was required so that [the purchaser] was ef-
fectively compelled to provide the Insurer with the information masked by the Redactions. This is
a case where, on the facts…privileged information was voluntarily disclosed to a potential
opponent.”
150 [2007] FCA 1987. For a comprehensive summary of the Australian and English case law on com-
mon interest privilege see Eastmark Holdings Pty Limited v Kabraji (No.3) [2012] NSWSC 1463.
151 [2007] FCA 1987 at [76]–[77].
[623]
tion where there is a sharing of legal advice with a third party who is not, and is
not likely to be, a party to litigation to which the advice relates. The plaintiffs had
argued that it needed to be shown that the documents containing the advice which
the insurers disclosed to their reinsurers were brought into existence for the
dominant purpose of being used in pending or contemplated litigation. The defend-
ants made no attempt to establish that the documents came within litigation
privilege: they relied on advice privilege alone. Rix J. held152:
“Ultimately, this question has to be dealt with as a matter of first principle. Where par-
ties can properly be considered as having such community of interest that they can be
regarded, if necessary putting it at the highest, as being in effect one and the same person,
then it should make no difference whatsoever whether one is dealing with [litigation
privilege] or [advice privilege]”153
6-102 As a matter of principle, this decision is clearly right. It is a welcome extension
and it ought to provide comfort to lawyers who act for separate clients who have
an identity of interest and who share legal advice in a situation where no litigation
can be contemplated. Thus supposing two companies, each separately advised, join
forces to make a joint takeover bid. It is inevitable that they and their respective
lawyers will share information and advice and it can only be right that such materi-
als so exchanged should—all other conditions of the privilege being satisfied—be
the subject of common interest privilege maintainable against the outside world.
6-103 Even here, though, there are limitations. In The “Sagheera”,154 two parties had
jointly instructed one firm of solicitors to investigate a vessel’s demise. One of them,
H&M underwriters, then instructed separate solicitors to negotiate an assignment
of the owners’ cause of action against their war risk underwriters. Rix J. held there
was no common interest privilege in their respective solicitors’ correspondence
since this was inter partes correspondence which was non-confidential and was
designed to protect each of them in the perfection of the assignment.
Common interest privilege and co-defendants

6-104 In Ch.3, case law was discussed that dealt with the application of litigation
privilege to communications between co-parties to litigation. It is additionally clear,
from the way in which common interest privilege was revived in Buttes Gas, that
one party’s existing privileged communications can be shared with e.g. a co-
defendant if there is a sufficient common interest between them. So, in this way,
co-parties to litigation can make original communications between each other that
are protected by litigation privilege, and also share communications already in exist-
ence that are protected by either advice or litigation privilege under the cloak of
common interest privilege. And as will be discussed in Ch.7, parties can in any
event share privileged materials on a confidential basis irrespective of the interests
if any that exist between them, without losing any underlying privilege.155 156
6-105 The Australian approach here is instructive. So, in Thiess Contractors Pty Ltd v
152 [1995] 2 Lloyd’s Rep. 84 at 88.

153 See also Colman J. in the Formica case, [1995] 1 Lloyd’s Rep. 692 at 699. New Zealand, Australia
and Canada have all followed suit—see for example Unilateral Investments Ltd v VNZ Acquisi-
tions Ltd [1993] 1 N.Z.L.R. 468, State of SA v Peat Marwick Mitchell No.SCGRC 94/983 [1995],
and Pitney Bowes of Canada Ltd v The Queen [2003] 225 D.L.R. (4th) 747.
154 [1997] 1 Lloyd’s Rep. 160.
155 So, when in Lee v South West Thames Regional Health Authority [1985] 2 All E.R. 385, Sir John
[624]
Terokell Pty Ltd, Derrington J. in the Supreme Court of Queensland, held that a
party’s interests need only be in common, and not identical, for common interest
privilege to apply.157 In Patrick v Capital Finance Corporation (Australasia) Pty
Ltd, Tamberlin J. in the Federal Court of Australia held that common interest
privilege would exist between co-defendants provided that the co-defendants
interests were not hostile or adverse.158 In Farrow Mortgage Services Pty Ltd v
Webb, Sheller J.A. held that:
“Common interest is not a rigidly defined concept. A mere common interest in the
outcome of litigation will be sufficient to enable any party with that interest to rely on
it.”159
Who can waive common interest privilege?

There are relatively few decisions that consider whether the original privilege 6-106
over which common interest is also claimed can be waived only with the consent
of all parties sharing the common interest—as with a joint interest—or whether the
original privilege holder can waive it unilaterally. It is submitted that as a matter
of principle the privilege should be capable of being waived by the original holder
alone—as the High Court of Singapore held in Motorola Solutions Credit Co LLC
v Kemal Uzan.160 However, there are some situations, especially where contractual
provisions overlay the common interest, where all the parties enjoying the privilege
need to consent to its waiver, as in Accident Exchange Ltd v McLean,161 discussed
below.
Donaldson MR stated (obiter) that the fact that the two parties’ interests were “diametrically op-
posed” in that they were alternative defendants to a claim and that their defences were likely to be
of the “cut throat” variety, while this meant that no common interest could exist between them,
nonetheless it would have been open to them to share their privileged materials on a confidential
basis. Commentators have in any case suggested that this case takes too narrow a view of what
constitutes a common interest—see Phipson on Evidence 17th edn, which argues at para.24-06 that:
“the suggestion that common interest privilege cannot be deployed where there is a potential conflict
is unsatisfactory. Two defendants likely to be sued in the same proceedings may have diametrically
opposed interests in that they may be alternative defendants. Yet they may have a common interest
in attacking the quantum of the claimant’s claim or in seeking to make good a limitation defence
which would provide a defence to both. There seems no good reason why common interest privilege
should not apply.”
156 As the Federal Court of Australia noted in Asahi Holdings (Australia) Pty Ltd v Pacific Equity
Partners Pty Limited (No.2) [2014] FCA 481(discussed above) at [74]–[75]: “However, even where
a privileged document is provided to an opponent, the confidentiality in the disclosed communica-
tion may be preserved. If the basis upon which privileged material is made available is restricted so
as to secure the confidentiality, the act of disclosure may not be inconsistent with the maintenance
of the confidentiality which the privilege serves to protect. Restrictions of that kind are obviously
better effectuated by an express agreement which spells out the basis upon which the disclosure is
made and the limitations upon its further use. However, agreement as to confidentiality may be
implied from the circumstances in which the disclosure was made: Gotha City v Sotheby’s [1998] 1
WLR 114…”. These issues are discussed in detail in Ch.7.
157 [1993] 2 Qd R 341, 343.
158 [2004] FCA 1249.
159 [1996] 39 N.S.W.L.R. 601 at [609]. In Robert Hitchins Ltd v International Computers Ltd [1996]
EWCA Civ 1163, members of the English Court of Appeal disagreed as to whether a third party who
supplied privileged documents to the defendant with whom he had just settled had a common inter-
est in their subject matter which entitled the defendant to assert the third party’s privilege against
the plaintiff: see the discussion of this case at Ch.3, Section 10.
160 [2015] SGHC 228.
161 [2018] EWHC 23 (Comm).
[625]
6-107 In Motorola, certain defendants—the applicants—sought a declaration that four

email chains in the plaintiff’s possession were protected by the applicants’ com-
mon interest privilege and therefore sought orders restraining the plaintiffs from us-
ing them in this Singapore action. There was no dispute that the emails were
privileged communications and that the applicants were entitled to assert legal
privilege over them unless that privilege could be said to have been waived. The
waiver issue arose because of the manner in which the emails came into the
plaintiff’s possession, namely pursuant to orders for discovery made in Hong Kong
proceedings against the applicants and their nominees in which the plaintiff sought
to enforce an English judgment. It appeared that only the alleged nominees sued
in Hong Kong were given the opportunity to object to the disclosure of the emails
produced under the order of the Court. No such objection was made as a result of
which the emails were obtained from one such nominee. The plaintiff then obtained
leave from the Hong Kong Court to use the emails in the Singapore action.
6-108 One of the issues in the Singapore proceedings (where the concept of common
interest privilege is recognised: see The Oriental Insurance Co Limited v Reliance
National Asia Re PTE Limited162), was whether waiver of privilege by one member
of a common interest group constituted waiver by all other members of the group.
Distinguishing the position of joint interest privilege (where it was clear that waiver
by one joint interest holder would not amount to waiver by another joint interest
holder without the latter’s agreement), the court noted that the position in England
seemed to be that a common interest holder cannot waive privilege without the
agreement or authority of the other interested parties163; whereas the limited dicta
from Australia suggested that if one common interest holder waives privilege, then
the other common interest holders would not be entitled to assert privilege if it is
unfair for them to do so.164
6-109 The Singapore Court sided with the view that the original privilege holder can
waive privilege without the consent of others who enjoy the common interest
privilege with him. Chua Lee Ming J.C. said that:
“… waiver by the provider of the privileged materials would destroy the common inter-
est privilege and the recipients in the group would no longer be able to assert such
privilege. In my opinion, this was logical since the legal privilege was the provider’s to
begin with. I saw no reason why a recipient in the common interest group should be
permitted to continue to assert legal privilege where the provider had waived it. The legal
privilege acquired by the recipients by a common interest group was…‘parasitic’ on the
privilege of the providers.”165
6-110 This contrasted in his view with waiver by a recipient of the privileged materi-
als in the common interest group, where the judge held that:
“…such waiver would not constitute waiver by the other common interest holders, includ-
ing the providers. Each common interest holder, whether he was the provider or the recipi-
ent, had the right to assert legal privilege over the shared materials against third parties.
162 [2009] 2 SLR(R) 385.

163 Dictum of Aikens J. in Winterthur Swiss Insurance Company v AG (Manchester) Limited (In
Liquidation) [2006] EWHC 839 (Comm) at [133] where he said: “Moreover, if legal professional
privilege is held jointly, then it cannot be waived by one person alone. In my view that rule must
apply equally to common interest privilege as much as to ‘joint privilege’ where, e.g. two parties
jointly obtain advice from a lawyer.”
164 Farrow Mortgage Services Pty Limited (In Liquidation) v Webb [1996] 39 N.S.W.L.R. 601.
165 [2015] SGHC 228 at 22.
[626]
Except in the case of waiver by the provider, in principle, whether any common interest
holder had waived his right to assert privilege ought to be determined by his own conduct.
In my opinion, it would be unfair to allow waiver by one recipient in a common interest
group to constitute waiver by the other innocent common interest holders who had not
participated in any way in the waiver. If any other common interest holder had in some
way participated in the waiver then it would be his own conduct in doing so that
determined whether he had waived privilege.”166
Here, the nominee in Hong Kong was not the provider but a recipient of the 6-111
emails in the common interest group, and since the applicants had not participated
in any way in the waiver in Hong Kong, then the nominee’s waiver did not
constitute waiver by the applicants and they remained entitled to assert privilege
over the emails in Singapore.
The Motorola decision was an original provider decision. The one English case 6-112
to look at these issues, Accident Exchange Ltd v McLean,167 took a different ap-
proach having regard to the contractual arrangements existing between insurers and
their insureds. The claimants, AE, provided replacement motor vehicles on credit
terms to clients whose vehicles had been damaged in road accidents. Autofocus
Limited (AF) used to provide forensic services where a question arose about the hire
recoverable by an insured who had hired a replacement vehicle on credit terms. AE
alleged that in the years before AF went into liquidation, it was involved in the
systemic and endemic fabrication and manipulation of evidence about hire rates.
AE brought conspiracy and deceit proceedings against two former AF directors and
three firms of solicitors who acted for defendant drivers facing claims by AE’s
clients to recover the hire charges for their replacement vehicles. Two of the defend-
ant firms sought disclosure and inspection of documents in solicitors’ files who were
instructed to bring claims (the “underlying claims”) in the names of AE’s clients.
AE asserted privilege over documents relating to underlying claims.
The defendant solicitors contended that under the arrangements between AE, its 6-113
clients and the clients’ solicitors, AE had a right of access to the solicitors’ files, and
also the right to use the material for its own commercial purposes, including the
right to disclose documents and permit inspection of them in the present action. The
arrangements between AE and its clients contained in the underlying rental agree-
ments broadly speaking entitled AE to appoint a solicitor, granted AE an exclusive
right to pursue a claim and obliged a client to provide “all of the co-operation and
assistance which is reasonably necessary for the pursuit of the Claim”.
Andrew Smith J. accepted that, while these were not cases involving joint 6-114
privilege (since there was no joint retainer by AE and their clients of the solicitors
handling the underlying claims), nonetheless common interest privilege arose, since
AE and its clients had a common interest in the litigation against the defendant
drivers. Having first held that the terms of the relevant rental agreements obliged
the drivers to co-operate with AE so that AE was entitled to information, includ-
ing privileged information, that AE required to make decisions about how to
conduct the claims against defendant drivers, this did not mean that the client was
to be understood to be waiving privilege for all purposes such that AE was entitled
under the terms of the agreements to permit inspection of them.168
However, the solicitors also argued that, since AE and its clients had a common 6-115
166 [2015] SGHC 228 at [22]–[23].

167 [2018] EWHC 23 (Comm).
168 [2018] EWHC 23 (Comm); [2018] 4 W.L.R. 26 at [86] and [87].
[627]
interest privilege in these documents, then AE could effectively waive the privilege
alone. In the absence of English judicial authority supporting the proposition that
privilege in common interest can be waived by one privilege holder acting alone,
the solicitors fell back on the textbooks, as to which Andrew Smith J. noted Hol-
lander, Documentary Evidence 12th edn (2015), which posited a case where A
shows his counsel’s opinion to B in circumstances where there is common interest
privilege, and opines that the only party that can waive privilege is A and that it is
not B’s privilege to waive. He said:
“It seems probable that that would generally be so, but the reason is, I would suppose, that
the understanding between A and B in such circumstances would generally be that, by al-
lowing B to see the opinion, A had no intention to fetter his right to choose how to deploy
the opinion, whether or not that involved abandoning the protection of privilege. Hol-
lander does, in any case, go on to acknowledge that in other situations it seems wrong that
one holder of common interest privilege should be able to compromise the protection of
both.”169
6-116 Having noted the conclusion in Thanki, The Law of Privilege 2nd edn (2011),
paras 6.52–6.54, namely that “the rights of the primary privilege holder ought
ordinarily to be paramount”, Andrew Smith J. concluded:
“Whether or not on the facts of the Winterthur Swiss Insurance Co case [2006] EWHC
839 (Comm) the privilege is to be regarded as joint privilege of the insured and insurers
rather than common interest privilege…I agree with Aikens J. that there is no good reason
to distinguish the prima facie position in the two cases, or that, subject to any arrange-
ment between the privilege holders, one party sharing common interest privilege should
deprive the other(s) of the protection of privilege. I do acknowledge, however, that in cases
of common interest privilege a proper inference might more readily be drawn that the par-
ties’ arrangements were such that one privilege holder might waive the protection.
However, in this case the arrangements between AE and its clients were set out in the
agreements that they entered into, and in particular the rental agreements set out what
rights AE had in and with regard to the documents. I have concluded that the agreements
do not provide for AE to waive privilege in the documents, and in my judgment the law
will not supplement AE’s rights along the lines of [counsel’s] secondary argument. As in
Brown v Guardian Royal Exchange Assurance plc [1994] 2 Lloyd’s Rep. 325, the relation-
ship between AE and its clients with regard to rights in the solicitors’ documents is defined
contractually rather than by any general rule of law. Therefore, even if, contrary to my own
view, Aikens J. were wrong and the law allows one privilege holder to waive common
interest privilege, I cannot accept that AE can do so in this case. If it be a question of what
the court considers ‘fair’, I see nothing unfair in the clients maintaining privilege in the
documents given their contractual relations with AE and the retainer letters. If, on the other
hand, the primary or original privilege holder is in a position to give an effective waiver,
I cannot conceive in what sense AE might be said to have some sort of priority or primacy
over its clients with regard to documents in the solicitors’ file or the protection afforded
to them by legal professional privilege, so as to entitle it alone to decide whether or not
to maintain privilege in them. [Counsel’s] contention that it does seem to be directed to
AE’s greater financial interest in the litigation against the defendant drivers: that it paid
for the costs; that it would in practice take decisions about whether and how it was
pursued; that it was pursued for AE’s benefit and AE was entitled to the proceeds from
any settlement or judgment. His argument diverted focus from any priority regarding the
protection of legal professional privilege or the documents that were protected and turned
it instead to the aim of the litigation generally. In my judgment this cannot be right: the
169 [2018] EWHC 23 (Comm) at [92].
[628]
solicitors, albeit appointed by AE, accepted AE’s clients as their own, and their retainer
letters recognised this. AE was entitled to receive information and documents from the
solicitors only because the clients authorised this under rental agreements. To my mind,
this shows that, if the expression means anything, the clients rather than AE were the
‘primary’ privilege holders.”170
One decision not considered in Accident Exchange which lends some support to 6-117
the notion that there can be “arrangements” between the common interest holders
is Berezovsky v Hine,171 a decision on waiver of privilege considered in Ch.7. Here,
B shared a privileged draft statement with his friend, P. Following P’s death, B and
P’s estate fell into litigation and the estate sough to use the draft document. The
Court of Appeal noted an argument that common interest privilege in draft wit-
ness statements might apply in circumstances where they were shared between B
and P for a very limited purpose. The Court agreed that it was unnecessary to decide
the point but it went on to observe:
“…there is no reason why the common interest should not be subject to terms as to which
one of the parties can use the document (particularly where those terms are for the benefit
of the party who originally had, and chose to share, the documents and who enjoys, as it
were, the primary privilege, and binds the party who, at the time of the creation of the
common interest privilege, had little, if any, interest in any subsequent use of the
document). It is true that Bridge L.J. in Cia Barca de Panama SA v George Wimpey &
Co Ltd [1980] 1 Lloyd’s Rep 598, 615, said that if ‘A and B have a common interest in
litigation against C and if at that point there is no dispute between A and B then if
subsequently A and B fall out and litigate between themselves and the litigation against
C is relevant to the disputes between A and B then in the litigation between A and B neither
A nor B can claim legal professional privilege for documents which came into existence
in relation to the earlier litigation against C.’ However, that was a general observation, and
was plainly not intended to be a complete statement of the law of common interest
privilege. In any event, it was concerned with a case where the documents come into exist-
ence in connection with a case in which A and B are, at the time, both involved. Here the
documents were produced in connection with a case in which only [B] was involved at
the time, and were supplied to [P] because he was involved in a different case.”172
Conflicts of interest and joint and common interests

The principles relating to joint and common interests recognise that, where a 6-118
lawyer acts for one party to that interest (party A), the community of interest
between A and another party to that interest (party B) may be such that A’s lawyer
is partially released from his obligations of confidence towards him, such that he
is entitled to share A’s privileged communications with B. This can have the further
consequence that A cannot restrain the lawyer if he wishes to act for B in a matter
in which B wishes to use A’s privileged documents, even where that matter involves
proceedings against A.
This issue arose in Surjit Kumar Singla v William Stockler, Stockler Brunton (a 6-119
firm), a case concerned with a common interest in respect of the subject of matter
of litigation. Here, the claimant insolvency practitioner (S), engaged the defend-
ant solicitors to bring proceedings in England on behalf of a company (C) of which
he was appointed liquidator. S claimed that the solicitors had also acted for C and
170 [2018] EWHC 23 (Comm) at [94]–[97].

171 [2011] EWCA Civ 1089.
172 [2011] EWCA Civ 1089 at [44] and [45].
[629]
himself personally in Californian proceedings which were in the event

compromised. The solicitors denied this. OSB was a major creditor of C who
funded the English action and had also instructed the same solicitors to petition for
C’s winding up. OSB considered that the terms of the Californian compromise
involved a misfeasance on S’s part as against C. OSB pursued that complaint
against S by way of a misfeasance application in the liquidation of C, for which ap-
plication OSB had retained the defendant solicitors. S therefore sought an injunc-
tion to restrain them from acting as solicitors for OSB in any matter connected to
or arising out of the liquidation of C and from disclosing to OSB or any other person
any communications or other information received from him without his prior writ-
ten authorisation. By this stage, the solicitors’ retainer by S had come to an end.
Since the basis of the court’s jurisdiction to restrain a solicitor from acting against
a former client is founded on the protection of confidential information, Briggs J.
needed to consider the extent to which there existed any obligations of confidential-
ity between the parties. By analogy with the position of a solicitor who acts on a
joint retainer by two or more clients in relation to the same matter, he said:
“…it occasionally happens that there exists such a community of interest between a
litigant (A) and a third party to that litigation (B) that A’s solicitor is under no obligation
to keep confidential from B information arising in the performance of that retainer, even
though B is not his client in that litigation. The solicitor’s partial release from his ordinary
obligation of confidence to A frequently arises from express written agreement between
A and B. But it may also arise by way of necessary implication from the circumstances
about the relationship between A and B in connection with the litigation. Furthermore, a
conclusion (after the event) that the relationship necessarily involved such a release of the
solicitor from any obligation of confidence to A as against B may arise by way of infer-
ence from evidence as to their mutual conduct.”173
6-120 On the facts, the judge drew the clear impression that, prior to the conclusion of
the solicitors’ retainer, S appeared to be content to stand by and watch the disclosure
to OSB of typically confidential and privileged documents by the solicitors (who
did not think they needed S’s consent to do this) without any prior notice to him
that this was to be done. He therefore concluded:
“In the absence of an agreement (express or by conduct) permitting such disclosure, I am
not persuaded that the undoubtedly close correlation between a liquidator’s duties in the
pursuit of the claims made in the English proceedings, and the interests of the funder and
principal creditor likely to benefit from their successful outcome is sufficient of itself to
displace any obligation of confidence by the defendants to [S] in relation to those
proceedings. Nonetheless, that close alignment between [S]’s duties and OSB’s interests
was fertile ground for such a displacement of confidence to arise, either by agreement or
conduct. Although there is no evidence of an express agreement (whether orally or in writ-
ing) to that effect, I consider that the routine transmission by the defendants to OSB, with
[S’s] full knowledge but with no prior request or consent on his part, of all types of
ordinarily confidential and privileged materials gives rise to the strongest inference that
such a displacement of the ordinary obligation of confidence did occur on the basis of the
parties’ mutual conduct towards each other.”174 175
6-121 This decision is of course a consequence of the ruling in Bolkiah v KPMG in
173 [2012] EWHC 1176 (Ch) at [11].

174 [2012] EWHC 1176 at [28] and [29]. Note also the judge’s comments about common interest
privilege being used as a sword (at [14]): “In my judgment the concept of using common interest
privilege as a sword is less than ideal for present purposes. First, the question at issue is not privilege
but confidence. A party may be entitled to require the recipient of confidential information to keep
[630]
which Lord Millett had observed that where the court’s intervention is sought by a
former client, then its jurisdiction:
“…cannot be based on any conflict of interest, real or perceived, for there is none. The
fiduciary relationship which subsists between solicitor and client comes to an end with
the termination of the retainer. Thereafter the solicitor has no obligation to defend and
advance the interests of his former client. The only duty to the former client which
survives the termination of the client relationship is a continuing duty to preserve the
confidentiality of information imparted during its subsistence.”176
Applying those principles to a joint interest situation, Briggs J. said: 6-122
“For present purposes, where the question is whether A may prevent his former solicitor
from acting for B in litigation between A and B, I consider that the principle which
emerges from the authorities requires the court to ask whether A’s ordinary expectation
that his former solicitor will treat their communications as confidential has been displaced
by contract, or by the mutual conduct towards each other of A, B and the solicitor, so as
to displace any obligation on the solicitor to keep his communications with A confidential
from B. In circumstances falling short of a joint retainer the court will be slow to deprive
A of that ordinary expectation of confidence, but circumstances may arise, or the parties
may be shown to have conducted themselves in such a way, that the only realistic explana-
tion is that the ordinary obligation of confidence has been wholly removed, as between
the solicitor and B, even if it remains in place as between the solicitor and the rest of the
world.”177
That situation was to be contrasted with: 6-123
it confidential although this confidence may be overridden by the obligation to give disclosure in
legal proceedings. In those circumstances the existence of the requisite common interest may dis-
able the litigant otherwise obliged to give disclosure from refusing inspection on the grounds of
privilege. Secondly, the concept suggests that in all circumstances where, as between two persons,
there exists common interest privilege, such as to enable them to communicate with each other but
claim privilege for those communications against the rest of the world, there can by the same token
be no obligations of confidence owed by a common solicitor to both of them, in respect of the subject
matter of the common interest. This might originally have been so, when the existence of a com-
mon interest depended upon the parties’ interests being so closely aligned that they could both have
used the same solicitor for the pursuit or defence of them. But the law on common interest privilege
has, at least arguably, moved on so as to embrace circumstances where that stringent test is not
satisfied: see generally Phipson (op. cit.) at paragraphs 24-05 and 24-06.
175 In similar vein, see also Winters v Mishcon de Reya [2008] EWHC 2419 (Ch) in which W was the
chief executive of the UK branch of a prominent Jewish charity (“the JNF”). W and the JNF retained
the defendant solicitors on five related matters: for three of them there was a joint retainer; for one
they acted for the JNF alone; and in respect of the fifth they acted for W alone. When an employ-
ment dispute emerged between W and the JNF, the JNF retained the solicitors. W’s attempt to restrain
them from acting for the JNF against him failed at trial before Henderson J. who found that the mat-
ter in which the solicitors had acted for W alone was so closely related to their retainer by the JNF
on other matters that ([2008] EWHC 2419 at [80] and [81]) “no question of privilege or confidence
as between [W] and the JNF could reasonably have been seen as arising at that stage, at any rate in
relation to matters of common interest to [W] and the JNF…It is in my judgment clear that in
circumstances where there is a joint retainer, or where the same solicitors act for two clients in related
matters in which they have a common interest, neither client can claim legal professional privilege
against the other in relation to documents which come into existence or communications which pass
between them and the solicitors, within the scope of the joint retainer or matter of common interest
concerned”.
176 [1999] 2 A.C. 222 at 235C.
177 [2012] EWHC 1176 (Ch) at [15]. In the Winters decision, Henderson J. was “prepared to assume,
without deciding, that there may be rare circumstances in which the court will intervene, in exercise
of its general jurisdiction over solicitors as officers of the court, notwithstanding that there is no risk
of misuse of confidential information. However, the facts of the present case seem to me far removed
[631]
“…the commonplace situation in which A permits his solicitor from time to time to
disclose specific (otherwise confidential) matters to B, while retaining a general right to
prohibit such disclosures (either of the same or other confidential information) to B in the
future. In such a case A will be at liberty to restrain any further disclosure of confidential
communications by his solicitor, and will ordinarily be taken to have done so if he
terminates his solicitor’s retainer. In such a case A may well be able to restrain the solici-
tor from acting thereafter for B against A, unless the solicitor can show that everything
passing confidentially between him and A had already been disclosed to B before the
retainer, or the ad hoc consent to disclosure, was terminated.”178
4. SUCCESSORS IN TITLE
6-124 Two other situations in which a client’s privilege can be asserted by another are
where that other claims under or in the same interest as the client, and also where
he is a successor in title to the client. In the latter case, the death of a client, for
example, does not destroy his privilege since this can be asserted by his heirs179;
and, as will be seen, similar principles apply in a corporate context.180 While previ-
ous editions of this work, reflecting case-law, have referred to the successor in title’s
ability to “assert” the prior owner’s privilege, the Court of Appeal in 2019 in Ad-
dlesee & Ors v Dentons Europe LLP has emphasised that the correct analysis is that:
“… legal advice privilege, once established, remains in existence unless and until it is
waived. It is established as a result of the purpose for which, and the circumstances in
which, the communication was made.”181
6-125 The first decision to establish clearly that the privilege of a predecessor in title
can be asserted by his successor was Minet v Morgan,182 where the defendants
sought orders for production of documents in the possession of the plaintiff. The
plaintiff claimed privilege for some of them, which included “correspondence
between himself and his family solicitors and his present solicitors”, and “letters
between his mother and her solicitors with reference to questions connected with
the matters in dispute in this cause”. These claims to privilege were upheld, the Lord
Chancellor, Lord Selborne, making it clear “that the only issue was whether the
plaintiff had sufficiently claimed protection for these confidential letters”.183
from a situation where it would be appropriate for the court to exercise any such jurisdiction”:
Winters v Mishcon de Reya [2008] EWHC 2419 (Ch) at [94].
178 [2012] EWHC 1176 (Ch) at [17]. This “commonplace” situation is addressed in Ch.7.
179 Per Lord Lindley in Bullivant v AG for Victoria [1901] A.C. 196 at 206. For a modern decision in
which the heirs’ ability to use privileged materials disclosed to their predecessor in title was limited:
see Berezovsky v Hine [2011] EWCA Civ 1089. As noted at para.6-054 above, in New Zealand, the
position is now covered by statute.
180 For the position in Ireland, see Sports Direct International Plc v Minor [2015] IEHC 650.
181 Per Lewison L.J. [2019] EWCA Civ 1600 at [90]. The decision is only briefly analysed in the text,
having been handed down at the point of publication of this 4th edition.
182 (1873) 8 Ch App 361. For the position in the United States, see Swidler & Berlin and James
Hamilton, Petitioners v United States 118 S.Ct 2081 (1998).
183 (1873) 8 Ch App 361 at 366. In Crescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd [1972] Ch.
553 (discussed below), Goff J. commented, at 562, that Minet v Morgan was the first case which
clearly settled that the legal professional privilege of a predecessor in title endures for the benefit
of his successor. He noted that this was unequivocally expressed in the second part of the head note
of this case although “the judgment does not say so quite specifically but when analysed the case
clearly so decided”. In Dawson-Damer v Taylor Wessing LLP [2019] EWHC 1258 (Ch), Andrew
Hochhauser QC (Sitting as a Deputy Judge of the Chancery Division), held that when one trustee
[632]
SUCCESSORS IN TITLE
This issue arose again in the Court of Appeal’s decision in Calcraft v Guest.184 6-126
One of the questions dealt with here concerned the privileged status of certain
relevant documents which had come into existence in relation to Mr Calcraft’s
forebear in an action which had taken place over 110 years previously. Once again,
there appears to have been no challenge to the principle that a successor in title can
assert and maintain his predecessor’s privilege.185 Similarly, Lord Lindley in the
House of Lords in Bullivant v Attorney-General for Victoria said that in relation to
an argument as to whether privilege survived a death that:
“The mere fact that a testator is dead does not destroy the privilege. The privilege is
founded upon the views which are taken in this country of public policy, and that privilege
has to be waived, and unless the people concerned in the case of an ordinary controversy
like this waive it, the privilege is not gone – it remains.”186
Consistent with the principles that have been discussed in this chapter, where 6-127
more than one person claims under or in respect of the interests of the original
beneficiary of the privilege, none can assert that privilege as against any other
claimants. Thus, in Re Pickering187 a partner in a two-man partnership died and his
surviving partner was one of his several executors. His children were the residu-
ary legatees. In an action by one child, an order was made for the taking of the ac-
counts of the partnership as between the surviving partner and the testator’s estate.
The Court of Appeal refused to allow the surviving partner the usual liberty to seal
up entries in the partnership documents which did not relate to matters in dispute.
The child, in effect as beneficiary under the estate, was entitled to access to the
partnership books. Though a decision primarily concerned with irrelevant entries,
it is clear from the court’s judgment that any privileged communications between
one of the partners (before his death) and his lawyer relating to partnership mat-
ters could not have been withheld in litigation against a legatee.
Similarly, in Russell v Jackson,188 while it was recognised that privilege does not 6-128
terminate upon the death of a client and that it belongs equally to parties claiming
under the client as against parties claiming adversely to him, nonetheless, Vice-
Chancellor Turner held that in proceedings brought by the next of kin of the
deceased against his executors, no privilege could be asserted as against any of them
in respect of professional communications between the testator and his solicitor in
cases concerning testamentary dispositions by the testator as between different par-
ties, all of whom claimed under him. However, where that same solicitor acted for
the executors, then in relation to communications between them, the privilege could
be asserted as against the next of kin.189
A personal representative or successor in title to the deceased’s privilege enjoys, 6-129
not surprisingly, all the rights relating to the privilege as were engaged by the
deceased. So, in R v Hickey,190 the Court of Appeal held that the deceased’s personal
representatives were entitled to waive his privilege.
was succeeded by another, any privilege pertaining to advice belonging to the trust passed from the
outgoing trustee to the new one: at [157].
184 [1898] 1 Q.B. 759. The decision is further considered in Ch.7.
185 For a more recent authority, see Kershaw v Whelan [1996] 1 W.L.R. 358 at 364.
186 [1901] A.C. 196 at 206.
187 (1883) 25 Ch D 247.
188 (1851) 9 Hare 387.
189 See also Curtis v Beaney [1911] P. 181.
190 [1997] EWCA Crim 743 and reported as Patrick Molloy [1997] Cr. App. R. 283. Surprisingly the
Court of Appeal suggested there was no authority on point to support the conclusion that “…those
[633]
6-130 This “successor in title” principle operates also where the privilege is an
incidence of a title to property.191 This principle featured in the decision in Crescent
Farm (Sidcup) Sports Ltd v Sterling Offices Ltd.192 The plaintiff and first defend-
ant were purchasers and sub-purchasers of land under a 1959 conveyance which
granted the plaintiffs a first option over any of that land which the first defendant
wished to sell. The first defendant agreed to sell the land to the second defendant,
subject to obtaining a release of the plaintiff’s pre-emptive rights under the 1959
conveyance. In the event, the plaintiff decided to exercise its right to purchase but
there was a difficulty in working out the arrangements by which the sale price
should be agreed. The first defendant then sold the land to the second defendant
whereupon the plaintiff sued for breach of contract and conspiracy. A preliminary
issue arose as to the plaintiff’s entitlement to production of counsel’s opinion
obtained by the first defendant, which it sent to the second defendant prior to the
conveyance of the land to the second defendant.
6-131 It was accepted that the opinion was privileged in the hands of the first defend-
ant, but it was argued that since it had been sent to the second defendant in
circumstances where there was no litigation contemplated or pending, then that
could not be a privileged communication. The defendants met this argument by as-
serting that the opinion was a document which was a matter of title: since the second
defendant was the successor in title to the first defendant, then it was entitled to the
first defendant’s privileges, even though the second defendant received the opinion
before completion, that is, before they succeeded to the first defendant’s title. Goff
J. held that it was impossible to say:
“…that the second defendants did not received the documents as successors in title, and
whether or not they could have called for them at any stage is in my judgment irrelevant.
They were prospective purchasers. They had actually entered into a conditional contract
and the documents were sent to them with a view to persuading them to complete.” 193194
6-132 In Shlosberg v Avonwick Holdings Ltd, Arnold J. rejected an argument that
in whose hands the legal professional privilege survives, so that they may claim it, must equally be
able to waive it”. In the event, relying on Re Konigsberg [1989] 1 W.L.R. 1257 (discussed in the
text below), the Court concluded that if a trustee in bankruptcy may waive legal professional
privilege on behalf of a bankrupt, then personal representatives or successors in title to a deceased
person must also have this power (at 284). As is now apparent, this assertion no longer holds good:
see the discussion in the text below.
191 But it does not extend to a party who had received another’s privileged material where he has
“licence arrangements” with that other: Reeves Brothers Inc v Lewis Reed & Co Ltd [1971] F.S.R.
17; [1971] R.P.C. 355.
192 [1972] Ch. 553.
193 [1972] Ch. 553 at 564. This decision could equally well be decided now under the cases whereby it
is recognised that parties can share privileged information on confidential terms: see Ch.7, Section
3. In Surface Technology Plc v Young [2002] F.S.R. 25, Pumfrey J. took from Crescent Farm (Sidcup)
Sports Ltd v Sterling Offices Ltd [1972] Ch. 553 that the successor in title to identified property is
entitled to assert the privilege of the vendor at least in respect of documents prepared for the purpose
of obtaining legal advice in relation to the property transferred and in relation to the advice given.
In the case before him, he held that what was transferred to the claimants were certain intellectual
property in so far as title subsisted to it including certain patents. That not only entitled the claim-
ants to (at [25]) “…claim privilege to this extent. I would hold also that it is implicit in this proposi-
tion that the claimant is entitled to copies of the privileged material from the solicitors at its own
expense. This follows, it seems to me, because otherwise the privilege is valueless, since the claim-
ants have no means of knowing what material they are asserting privilege in.”
194 In a 2019 Delaware Court decision, it was held that a merger agreement adequately preserved the
selling company’s privilege with the result that the purchaser company was prevented from using
the seller’s privileged information (which otherwise would have passed to the purchaser as an
[634]
SUCCESSORS IN TITLE
involved treating the principle to be derived from the Crescent Farm decision as
applicable to the property in documents recording privileged information, in that
case where a bankrupt’s privileged documents came into possession of the
bankrupt’s trustee in bankruptcy. He said:
“In my judgment it is clear both on principle and on the authorities that the Crescent Farm
principle does not depend on acquisition by the successor in title of property in the docu-
ments recording the privileged information, but on acquisition by the successor in title of
some other property to which the legal advice or litigation related. As a matter of principle,
the right to exercise privilege cannot depend on ownership of the paper on which the
privileged information is recorded. Thus, a client can claim privilege even if the paper is
owned by the solicitor. Conversely, the client does not lose privilege if the solicitor gives
away, sells or destroys the file. It is not ownership of the paper which matters, but the right
to control the dissemination and use of the information recorded on the paper. The client
has that right even if the information is not recorded on paper at all, but only
electronically.”195
Until 2016, it had been assumed that both a trustee in bankruptcy and a liquida- 6-133
tor assumed full rights in respect of privileged documents belonging to the bankrupt
and the company respectively which they obtained in the exercise of their duties
as such. This meant that not only was privilege no answer, for example, to the
trustees’ right to inspect the bankrupt’s privileged documents created before his
bankruptcy, but also that the existence of the bankrupt’s privilege did not prevent
the trustees (and liquidators) from using and asserting the bankrupt’s privilege and,
more importantly, waiving it.196 Thus in Re Konigsberg,197 Peter Gibson J. held that
the privilege of a bankrupt devolved onto his trustee in bankruptcy who was thus
entitled to obtain privileged information from the bankrupt and to be treated as be-
ing in the shoes of the bankrupt for the purpose of privilege in proceedings against
a joint client. In this decision, the trustee was entitled to use the evidence of a solici-
tor who had been jointly instructed by a husband and wife where the husband alone
had become bankrupt—the wife’s interest in the privilege did not entitle her to treat
the trustee as a third party against whom her interest in the joint privilege could be
asserted.
Re Konigsberg was overruled when the Court of Appeal in Avonwick Holdings 6-134
Ltd v Shlosberg198 examined in detail the nature of the relationship between trustees
and bankrupt so far as concerns the trustees’s rights to use the bankrupt’s privileged
incidence of the sale) in post-closing litigation: Shareholder Representative Services LLC v RSI
Holdco, LLC, C.A. No. 2018-0517-KSJM (Del. Ch. May 29, 2019).
195 [2016] EWHC 1001 (Ch) at [108]–[109]. Tje Judge added at [110]: “Furthermore, the Respondents’
contention would have the result that a trustee always acquired the benefit of privilege to which the
bankrupt was entitled regardless of the subject matter of the advice or litigation. So even if the advice
related to a claim for assault or defamation or divorce, the bankrupt’s privilege would transfer to the
trustee. Counsel for the Respondents argued that this did not follow, because if the subject matter
of the advice or litigation was ‘peculiarly personal’ to the bankrupt, the privilege would not be
transferred. But this argument depends on the nature of the information, not on ownership of the
pieces of paper.” The position of a trustee in bankruptcy and the bankrupt’s privilege is discussed
in the text next. The Court of Appeal did not discuss Arnold J.’s comments on these points in its judg-
ment in Avonwick Holdings Ltd v Shlosberg [2016] EWCA Civ 113, also discussed below.
196 The trustee is not of course entitled to see the bankrupt’s privileged advice obtained after the com-
mencement of his bankruptcy: see Foxley v United Kingdom (2001) 31 E.H.R.R. 25, discussed in
Ch.1.
197 [1989] 3 All E.R. 289. Re Konigsberg was the principal authority relied on in R. v Hickey, discussed
above.
198 [2016] EWCA Civ 1138 at [60]. The court also made it clear at [82] that Re Cook [1999] B.P.I.R.
[635]
information when discharging their duties in that regard. In particular, the Court of
Appeal held that the bankrupt’s privilege is not a right of property that vests in the
bankrupt such that the trustee is entitled to waive the privilege without the
bankrupt’s consent.
6-135 The facts in brief were that S, an individual and the beneficial owner of
Webinvest, guaranteed a loan made to Webinvest by Avonwick. That loan, together
with other funds borrowed by Webinvest from Castle, a company owned by a trust
of which S’s family were the beneficiaries, was in turn used to make a loan to
Globoid for investment in aluminium plants. When Globoid failed to repay the loan
to Webinvest, Webinvest was in turn unable to repay its loan to Avonwick.
Avonwick therefore sued Webinvest for repayment of the outstanding loan as well
as S as guarantor. In due course, a bankruptcy order was made against S and a wind-
ing up order against Webinvest. Avonwick also commenced conspiracy proceed-
ings against Castle and Webinvest relating to a settlement reached by Globoid and
Castle which prevented Avonwick from receiving any repayment of its loan. S’s
solicitors provided privileged documents to S’s trustees in bankruptcy who in turn
passed them to their solicitors (D) to review. As well as S’s trusteees, D acted for
Avonwick and the liquidators of Webinvest. When S’s trustees sought to allow
Avonwick to use the documents in its claims against Castle in the conspiracy
proceedings, S applied to restrain this use by seeking an order that D cease to act
as solicitors for Avonwick and the trustees.
6-136 Arnold J. granted the application, holding inter alia that the statutory regime in
bankruptcy did not have the effect of vesting in the trustees S’s right to privilege
in respect of the documents and that a trustee in bankruptcy has no power to waive
privilege over documents or information obtained from a bankrupt pursuant to his
statutory powers.199 The Court of Appeal dismissed the trustees’ appeal. In doing
so, Sir Terence Etherton MR focused on the importance of the bankrupt’s privilege
as a substantive right (in the wake of R v Derby Magistrates’ Court, Ex p. B200) in
answering the question whether, from S’s perspective, the effect of the statutory
bankruptcy code was that he was involuntarily deprived of his fundamental right
to assert his privilege in the information contained in the documents given to the
trustees. That meant analysing whether S’s privilege had been abrogated by the
provisions of the Insolvency Act 1986 in light of the principles set out in R. (Morgan
Grenfell & Co Ltd) v Special Commissioner of Income Tax.201
6-137 The definition of property which forms part of a bankrupt’s estate is contained
in ss.283 and 436 Insolvency Act 1986, where s.436(1) provides that: “‘property’
includes money, goods, things in action, land and every description of property
wherever situated and also obligations and every description of interest, whether
present or future or vested or contingent, arising out of, or incidental to, property”.
As to these, the Master of the Rolls considered it clear that, on their proper
interpretation:
“…privilege is not property of a bankrupt which automatically vests in the trustee in
bankruptcy. Following the Morgan Grenfell case and the Simms case,202 the bankrupt can
only be deprived of privilege if [the Insolvency Act 1986] expressly so provides or it is a
881 was also wrongly decided.

199 Shlosberg v Avonwick Holdings Ltd [2016] EWHC 1001 (Ch).
200 [1996] 1 A.C. 487.
201 [2002] UKHL 21.
202 That is, R. v Secretary of State for the Home Department, Ex p. Simms [2000] 2 A.C. 115.
[636]
SUCCESSORS IN TITLE
necessary implication of the express language of its provisions. The only provisions relied
upon by the Trustees in the present case on this aspect are the definition of ‘property’ in
section 436(1) and the treatment of a ‘power over or in respect of property’ in section
382(4), in conjunction with the general provisions in sections 283 and 306 for the
automatic vesting in the trustee of the bankrupt’s property comprised in his estate. All
those provisions are in general terms. They do not expressly treat privilege as property
of the bankrupt which automatically transfers from the bankrupt to the trustee. Nor is that
a necessary implication of the provisions.”203
It followed from this that because Re Konigsberg predated the Derby Magis-
trates, Simms and Morgan Grenfell decisions, then “unsurprisingly” Peter Gibson
J. did not apply the principles in those cases and so it was “not correct on the point
presently under consideration”.204
A further issue was whether the trustees’ position was saved by s.311(1) 6-138
Insolvency Act 1986. This provides that:
“The trustee shall take possession of all books, papers and other records which relate to
the bankrupt’s estate or affairs and which belong to him or are in his possession or under
his control (including any which would be privileged from disclosure in any
proceedings).”
In applying this provision, the applicable principles were, once more, those stated
in the House of Lords’ authorities already referred to. Thus:
“The express terms of section 311(1) describe the duty of the trustee to take possession
of the documents mentioned there. It says nothing about their use by the trustee. It is
necessarily implicit in section 311(1), however, that the trustee is to take possession of
the documents for the overriding function of getting in, realising and distributing the
bankrupt’s estate. It follows that the trustee must, at the least, be entitled to look at the
documents to obtain information relevant to those matters. That is, of itself, a valuable
advantage in the fulfilment of the trustee’s statutory function. It is not, however, neces-
sarily implicit that the trustee can waive the bankrupt’s legal professional privilege in tak-
ing steps against third parties for the benefit of the bankrupt’s estate, desirable as that
might be from the point of view of the creditors. Echoing the words of Lord Hobhouse
in the Morgan Grenfell case…the fact that it would have been sensible or reasonable for
Parliament to have included such a power does not mean that it is necessarily implicit hav-
ing regard to the express language of the statute.”205
The Court’s conclusions then were that S’s privilege was neither property which 6-139
had vested in the trustees, nor was it something which the trustees could deploy
under s.311(1) in such a way as to waive the privilege. However, as the foregoing
passage from the Master of the Rolls’ judgment makes clear, the decision does not
undermine the trustees’ entitlement to take possession of the bankrupt’s privileged
materials and to use them in the more limited way that he described.
Avonwick is an interesting ruling that reinforces the continuing importance of 6-140
203 [2016] EWCA Civ 1138 at [63].

204 [2016] EWCA Civ 1138 at [64]. The judge added that the Crescent Farm decision did not stand in
the way of his conclusion: “The Crescent Farm case was not an insolvency case. Nor was the Minet
case which was cited as precedent in the Crescent Farm case. They turn on their particular facts.”
205 [2016] EWCA Civ 1138 at [70]–[71]. The Court also held (at [84]) that the proposed deployment
of S’s privileged documents in the conspiracy proceedings was not within the duty and ancillary pow-
ers of the trustees. Since the statutory function of a bankruptcy trustee, as per s.305(2), of the Act is
to get in, realise and distribute the bankrupt’s estate, the proposed deployment would not be for any
of those purposes.
[637]
privilege as a fundamental right. But what impact if any does it have on the
analogous position of liquidators? As with trustees, there are decisions that can only
be interpreted on the basis that liquidators have full power to use and even to waive
the company’s privilege: for example, Re International Power Industries Ltd206 and
Re Brook Martin & Co (Nominees) Ltd.207 However, there was no discussion in
Avonwick of these authorities nor of the position of liquidators and privilege under
the Insolvency Act. The closest the Court came to considering the position of
liquidators in this regard was in rejecting the relevance to the position of trustees
in bankruptcy and privilege of two corporate related decisions, Re Esal (Commodi-
ties) Ltd (No.2)208 and Re a Company.209 As to these, the Master of the Rolls said:
“They concern documents obtained by administrative receivers and liquidators, who are
agents of the company. A trustee in bankruptcy is not an agent of the bankrupt. More to
the point, there was no consideration in those cases of the particular issue of the use of
documents and information subject to privilege and the principles that should apply to
their deployment.”210
6-141 The characterisation of a liquidator as an agent of the company is well recognised
under insolvency law and this probably holds the key to distinguishing the trustees’
position with respect to privilege as clarified in Avonwick and that of the liquidator.
In Re Anglo-Moravian Hungarian Junction Railway Co; Ex p. Watkin, Mellish L.J.
said:
“The liquidator is in a different position from a trustee in bankruptcy. He has not the as-
sets of the company vested in him. In the case of a voluntary winding up he is the officer
of the company who acts instead of the directors. He is no more personally liable for
contracts which he makes on behalf of the company than the directors would be for the
contracts they make on behalf of a company. In the case of a compulsory winding up in
the same way the official liquidator has not the assets vested in him…”211
6-142 This approach is also reflected in the Insolvency Act 1986 and the differences in
particular provisions as between trustees in bankruptcy and liquidators. So, s.87(2)
provides:
“The corporate state and corporate powers of the company, notwithstanding anything to
the contrary in its articles, continue until the company is dissolved”
206 Re International Power Industries Ltd [1985] B.C.L.C. 128.

207 Re Brook Martin & Co (Nominees) Ltd [1993] B.C.L.C. 328.
208 [1990] B.C.C. 708.
209 [1993] B.C.C. 734.
210 [2016] EWCA Civ 1138 at [80]. As to administrative receivers, note Bloom v The Pensions Regula-
tor [2013] Pens. L.R. 1 where administrators sought directions as to the extent to which they were
entitled to withhold documents on account of privilege in the face of a notice from the Pensions
Regulator issued under s.72 Pensions Act 2004. One category of documents comprised documents
which the administrators considered might be protected by privilege but in relation to which they
did not have at that point the evidence needed to support such a claim. Mann J. held (at [22]) that it
would be wrong to shut out the possibility that privilege can be claimed by persons genuinely own-
ing that privilege. Accordingly, “[t]hose who wish to assert privilege should take one of two courses.
They should try to convince the administrators that privilege should be claimed. …That will depend
on the quality of the information given to the administrators and will…depend on the administra-
tors’ objective judgment as to whether privilege can be claimed.” Mann J. said that if the administra-
tors were not satisfied, then the documents concerned would be produced to the Pensions Regula-
tor, subject to the procedural rider that if a party wishing to claim privilege in relation to these
documents made an application that they be not disclosed, then while that application was outstand-
ing they would not need to be disclosed.
211 (1875) 1 Ch D 130 at 134.
[638]
SUCCESSORS IN TITLE
whereas s.306 provides, in relation to bankruptcy, that:

“The bankrupt’s estate shall vest in the trustee immediately on his appointment taking ef-
fect or, in the case of the official receiver, on his becoming trustee.”
While privilege is an example of property that does not vest in the trustee, in rela- 6-143
tion to the liquidator no vesting of any property occurs since he acts as agent of the
company and so presumably enjoys all the rights arising from his authority as agent
of the insolvent company, an authority that entitles him to waive the company’s
privilege. Although not discussed explicitly in Avonwick, nonetheless the outcome
supports this conclusion. This is because the solicitors who handed S’s privileged
materials to his trustees had been jointly instructed by Webinvest and Mr Shlosberg
in relation to the proceedings to which the privileged materials related. Arnold J.
at first instance recorded that it was common ground between the parties that the
benefit of Webinvest’s privilege had vested in its liquidators but, because the
privilege was a joint one, S could assert the privilege against Webinvest (or its
liquidators) and equally, being a joint privilege that could only be waived jointly
by all the parties entitled to it, and not unilaterally by one of those parties, Webinvest
(and its liquidators) could not waive privilege to which S was jointly entitled
without his consent.212 No comment was made in the Court of Appeal on these
points, with the result that the Court dismissed the appeal against Arnold J.s
remedy213 that an injunction should be granted requiring the solicitors, D, to cease
acting for Avonwick.214
In Leeds v Lemos,215 the applicant trustees argued that Avonwick was wrongly 6-144
decided. In particular, the trustees argued that Avonwick confirmed that a bankrupt’s
privilege in documents that relate to assets of the bankrupt’s estate—but not the li-
abilities of that estate—continue to devolve upon the trustee in bankruptcy. Accord-
ingly, they argued that the trustees were entitled to make use of certain of the
bankrupt’s privileged documents for the purposes of fulfilling their functions,
whether in proceedings against the bankrupt, against third parties, or otherwise for
the purposes of the bankruptcy. They indicated that if that were not the case, then
the decision in Avonwick would have huge repercussions and serious implications
upon the ability of trustees in bankruptcy to discharge their functions to recover as-
sets of the bankrupt’s estate, not only in this case but much more widely. Accord-
ingly, Judge Hodge QC had to decide whether the principle formulated in Crescent
Farm (Sidcup) Sports Ltd v Sterling Offices Ltd216 applied to trustees in bankruptcy,
namely whether a successor entitled to an asset (such as a trustee in bankruptcy)
will acquire the privilege of its predecessors in documents relating to that asset.
Analysing both the first instance and appeal court rulings in detail, Judge Hodge 6-145
held that what Sir Terence Etherton MR was intending to convey in the Court of
212 Shlosberg v Avonwick Holdings Ltd & Ors [2016] EWHC 1001 (Ch) at [143].
213 The reasons behind this remedy are discussed generally in Ch. 7.
214 Avonwick Holdings Ltd & Anor v Shlosberg [2016] EWCA Civ 1138 at [92]. The Master of the Rolls
added at [93]: “… my rejection of the appeal in relation to remedy does not in any way indicate to
judges handling the future case management of the conspiracy proceedings what steps, if any, they
should take to protect [S’s] privilege. The reality that Avonwick is overwhelmingly the majority
creditor in the liquidation of Webinvest, that [S] cannot maintain the privilege against Webinvest,
that [D] will continue to act for Webinvest in the conspiracy proceedings, and that the claim is a claim
of conspiracy against all the defendants, will be a relevant backdrop to any case management deci-
sions regarding [S’s] privilege.”
215 [2017] EWHC 1825 (Ch); [2018] 2 W.L.R. 73.
216 [1972] Ch. 553.
[639]
Appeal was that merely because the privilege is held by the bankrupt, the trustee
does not automatically step into his shoes. That observation was not expressly
directed to, and was not to be confined as extending only to, liability documents.
In his judgment it extended to documents even if they affected assets of the
bankrupt. Accordingly, Judge Hodge QC was satisfied, on a true reading and
analysis of the Court of Appeal’s decision in the Avonwick case, that the Crescent
Farm principle had no application in bankruptcy even in relation to asset, as well
as to liability, documents. It followed that the judge also accepted that the Court of
Appeal in fact overruled the second ground for Peter Gibson J.’s decision in Re
Konigsberg.217
6-146 The judge went on to consider whether ss. 333 and 363 Insolvency Act 1986 Act
could be used by the trustees in bankruptcy so as to require a bankrupt to waive his
privilege in any documents released to the trustees in bankruptcy or which are held
by the bankrupt’s lawyers. The trustees submitted that s.333 imposes an obliga-
tion upon a bankrupt to co-operate with his trustees in the fulfilment of their func-
tions to the extent that the trustees may reasonably require. Section 363(2) enables
the court with supervisory jurisdiction over the bankruptcy to compel such
compliance. It followed, they submitted, from the unrestricted terms of s.363 that
the court is able to direct the bankrupt to cure such non-co-operation by agreeing
to waive his privilege in an appropriate case. Judge Hodge QC rejected this: since
privilege is a fundamental human right then the court has no jurisdiction to direct
a bankrupt, still less a third party, to waive privilege in any documents:
“In my judgment the right to privilege is such a fundamental principle, as recognised by
the House of Lords in the trilogy of cases previously cited, and by Sir Terence Etherton
MR in the Avonwick case, that only an express power to waive privilege in section 363(2)
itself would confer jurisdiction upon the court to order such a waiver. In my judgment, it
is a matter going to jurisdiction rather simply than to discretion. But if I am wrong in that,
it seems to me that, in principle, a very powerful case indeed would have to be made out
before the court should properly order a bankrupt to waive legal professional privilege in
relation to documents. …I find it difficult, particularly in the light of Ex p B [1996] AC
487, to think of any circumstances in which it would be appropriate to make such an
order.”218
6-147 The issue of the ability of a successor to the privilege to waive the privilege is
now even more central to the analysis of the rights of the successor, following the
Court of Appeal’s decision in Addlesee & Ors v Dentons Europe LLP.219 Here, the
Court of Appeal reviewed numerous authorities that pointed to the fact that privilege
attaches to communications at the time when they are made, and that the privilege
remains unless and until the client consents to its waiver. This was important since
the rationale for the privilege means that the client must be sure at the time when
he consults his lawyer there are no circumstances under which the privileged com-
munications will be disclosed without his consent. That meant that the privilege of
a dissolved company survived its dissolution such that investors in a scheme
marketed by that company were not entitled to seek its privilege documents from
its former solicitors. Lewison L.J. held:
“… legal advice privilege, once established, remains in existence unless and until it is
217 [2017] EWHC 1825 (Ch); [2018] 2 W.L.R. 73 at [241].

218 [2017] EWHC 1825 (Ch); [2018] 2 W.L.R. 73 at [278]–[280].
219 [2019] EWCA Civ 1600.
[640]
THE DURATION OF THE PRIVILEGE
waived. It is established as a result of the purpose for which, and the circumstances in
which, the communication was made. Whether there is no one who can now waive it; or
whether the Crown could have waived it but has not done so; does not matter.”220
It followed from this holding that the decision in Garvin Trustees Ltd v The Pen-
sions Regulator221 was overruled.
5. THE DURATION OF THE PRIVILEGE

Intertwined with the successor in title issues raised in some of the cases 6-148
considered in Section 4 above is the issue of the duration of the privilege,
particularly litigation privilege. If privileged materials are created for the purposes
of one action, can the holder of the privilege also assert privilege for them—
whether as a party or a mere witness—in a subsequent action? The English courts
have hitherto consistently answered this question in the affirmative, in the process
adopting the shorthand rule of “once privileged, always privileged”. Furthermore,
given the Addlesee decision just discussed, one would expect that position now to
be reinforced in the absence of any waiver of the privilege. However, as has been
considered in Ch.3, the Canadian and Irish courts have held that the duration of
litigation privilege (but not advice privilege) can be limited in time.
One of the earliest cases in which this issue was considered was Bullock & Co v 6-149
Corry & Co.222 The plaintiffs sued the defendants for their failure to accept delivery
of a cargo of rice, after they had been successfully sued by the ship owners for their
failure to discharge the cargo according to the terms of the charter party. The
defendants claimed that they were entitled to inspect correspondence passing
between the plaintiffs and their solicitors in relation to the ship owners’ action. The
plaintiffs argued that there was no reason why their privilege “should be limited to
an existing suit” and, in a short judgment, Cockburn C.J. agreed:
“The privilege which attaches by the invariable practice of our courts to communica-
tions between solicitor and client ought to be carefully preserved. In my opinion the rule
is, once privileged, always privileged. This will apply, a fortiori, where the succeeding ac-
tion is substantially the same as that in which the documents were used.”223
Over 100 years later, the scope of the “once privileged, always privileged” rule 6-150
was re-affirmed by the Court of Appeal’s decision in The “Aegis Blaze”,224 in which
the facts were as follows. The defendant vessel owners instructed surveyors to carry
out an inspection in the light of threatened proceedings by cargo owners for
damages. Several months later, other cargo carried on the same vessel was also
damaged, with the result that separate proceedings were commenced by different
220 [2019] EWCA Civ 1600 at [90].

221 [2015] Pens. L.R. 1, FS/2010/0010 & 11. In Garvin, the time for seeking to restore th dissolved
company had expired whereas in Addlesee it had not. This distinction, while important before the
Master at first instance, had no relevance to the Court of Appeal’s approach to the maintenance or
loss of the privilege.
222 (1877–78) 3 Q.B.D. 356.
223 (1877–78) 3 Q.B.D. 356 at 358. See also Pearce v Foster (1885) 15 Q.B.D. 114, where Brett MR
commented at 119 that Cockburn C.J.’s judgment in Bullock v Corry laid down “a most valuable
principle on this subject”. The “once privileged, always privileged” rule was also applied by the
Court of Appeal in Calcraft v Guest [1898] 1 Q.B. 759 (a case discussed in detail in Ch.7), which
Lord Lindley MR there described as ‘a general rule’, a comment adopted by Stirling J. in Goldstone
v Williams, Deacon & Co [1899] 1 Ch. 47.
224 [1986] 1 Lloyd’s Rep. 203.
[641]
cargo owners against the owners. The plaintiffs became aware of the earlier survey
report because of a reference to it in a letter disclosed by the owners upon discovery.
The owners asserted that this report was a privileged document that had come into
existence in the wake of the first set of contemplated proceedings (which, in the
event took place in Greece, not England). At first instance, Sheen J., following an
Irish decision in Kerry County Council v Liverpool Salvage Association,225 held that
a document does not retain its privilege in subsequent proceedings concerning dif-
ferent parties and different subject matters.
6-151 In the Court of Appeal, Parker L.J. reviewed the authorities226 and concluded that:
“Unless the party claiming the privilege or his successor is a party to the subsequent ac-
tion, no question of a claim to privilege will arise. That is established by Schneider v
Leigh.227 If, however, the party claiming privilege in the second action is the person
entitled to privilege in the first action, but there is no connection of subject matter
whatever, it is most improbable that the questions will arise, for in such circumstances the
document will not be relevant and will not therefore be disclosable, and there will
therefore be no question of production. If, however, there is a sufficient connection for
the document to be relevant, then it is, in my view, right that the party entitled to the
privilege should be able to assert it in the second action. I accept, of course, that that may
mean that the court trying the second action is deprived of full information, but so would
the court have been in the first action, and so also may it be in any case where privilege
is asserted.”228
6-152 In the same case, Croom-Johnson L.J., in a short concurring judgment, also
rejected a submission advanced on behalf of the cargo interests to the effect that
where the privilege is claimed in subsequent litigation, the rule “once privileged,
always privileged” is no more than a general rule in applying which the court must
balance the conflicting public policy considerations, namely that of the complete-
ness of the evidence before the court and that of the legal professional privilege.
In his view:
“…that balancing act should not be done in any circumstances where legal professional
privilege attaches. The balancing act has already been done by the making of the rule of
legal professional privilege; and to do what Counsel for the respondents submitted should
be done in subsequent litigation would be to deny, in effect, the existence of that rule.
Certainly it could not be done in view of the authority of Calcraft v Guest and of the other
authorities to which [Parker L.J.] has referred.”229
6-153 So far as the English authorities go, reference should also be made once more
to the House of Lords’ decision in R. v Derby Magistrates’ Court, Ex p. B,230 in
which Lord Taylor C.J.’s review of the long history of the development of legal
professional privilege referred approvingly to the “once privileged, always
privileged” rule. The importance of this rule was underlined by Lord Taylor’s
225 (1905) 38 ILT 7.

226 Including Calcraft v Guest [1898] 1 Q.B. 759, where he noted ([1986] 1 Lloyd’s Rep. 203 at 207)
that the parties in that action were entirely different and the only connection of subject matter which
he could ascertain from the report was that there were successors in title in the two actions concerned.
227 [1955] 2 Q.B. 195.
228 [1986] 1 Lloyd’s Rep. 203 at 209.
229 [1986] 1 Lloyd’s Rep. 203 at 211. This decision was followed in Hong Kong in Tam Yuk Kwan v
Chu Cheuk Tao [1989] HKCFI 504.
230 [1996] 1 A.C. 487.
[642]
THE DURATION OF THE PRIVILEGE
explanation of the rationale of privilege; and the views expressed on the inap-
propriateness of the “spent privilege” argument canvassed in that decision.231
However, this view has been challenged in the Canadian and Irish courts. As 6-154
discussed in Ch.3, in 2006, the Canadian Supreme Court in Blank v Canada
(Minister of Justice)232 placed a time limit on the duration of litigation privilege. It
did so by recognising that advice and litigation privileges are “distinct conceptual
animals and not…two branches of the same tree”, such that the object of litigation
privilege (per Fish J.) is:
“…to ensure the efficacy of the adversarial process and not to promote the solicitor-
client relationship. And to achieve this purpose, parties to litigation, represented or not,
must be left to prepare their contending positions in private, without adversarial interfer-
ence and without fear of premature disclosure.”233
The resultant “zone of privacy” in relation to pending or apprehended litigation
is one whereby:
“Once the litigation has ended, the privilege to which it gave rise has lost its specific and
concrete purpose—and therefore its justification. …Except where…related litigation
persists, there is no need and no reason to protect from discovery anything that would have
been subject to compellable disclosure but for the pending or apprehended proceedings
which provided its shield…”234
Blank was followed in 2014 by the High Court of Ireland in University College 6-155
Cork v ESB,235 where Finlay Geoghegan J. noted that changes in disclosure rules
in both personal injuries actions and High Court cases had resulted in the disclosure
of documents otherwise entitled to litigation privilege prior to the trial of the ac-
tion for which created—accordingly, witness statements and expert reports, for
example, otherwise entitled to litigation privilege, were now routinely disclosed in
advance of the trial. Suggesting that these changes underlined developments in the
approach to disclosure for the fair but, perhaps, more efficient administration of
justice in the adversarial system, she held that, as the objective purpose of litiga-
tion privilege is to give a party the opportunity to properly prepare its case without
premature disclosure or interference from the opposing party, then such objective
purpose does not require the privilege to automatically continue beyond the final
determination of either that litigation or (as in Blank), any closely related
litigation.236
The ESB decision concerned a claim for privilege over an expert’s report 6-156
prepared for threatened litigation against an electricity supply board arising from
a flood that occurred in 1990. Following a further flooding in 2009 which gave rise
to the later claim, ESB relied on the “once privileged etc” maxim to resist disclosure
of the earlier report. As, on the evidence adduced, there was no substantive or close
connection between the present claim and the claim (asserted by a different claim-
ant) arising out of the 1990 flood, the defendant was ordered to produce the earlier
report.
Is there any prospect that these decisions will be followed by the English courts? 6-157
231 See Ch.1, Sections 2 and 3.

232 [2006] 2 S.C.R. 319; 2006 SCC 39.
233 [2006] 2 S.C.R. 319; 2006 SCC 39 at [27].
234 [2006] 2 S.C.R. 319; 2006 SCC 39 at [34]–[36].
235 [2014] IEHC 135.
236 Ibid at [46].
[643]
One is tempted to say “no”. However, one senses that the English judiciary is
sometimes left uneasy by the scope of litigation privilege, and decisions such as Re
Barings237 evidence occasional attempts to keep it within bounds. That said, no
English decision has addressed the Blank approach; and although Lord Taylor in
Derby Magistrates decision referred with approval to the “once privileged, always
privileged” maxim as a “long established rule”, it is often overlooked that in the
same case Lord Nichols canvassed the concept of “spent privilege”. As to this:
“I would not expect a law, based explicitly on considerations of the public interest, to
protect the right of the client when he has no interest in asserting the right and the enforce-
ment of the right would be seriously prejudicial to another in defending a criminal charge
or in some other way.”238
Of course, this is not how the courts approached matters in Canada and Ireland,
and “spent privilege” has not been developed by the English courts. Save for a
single case in Hong Kong and dismissive comments by Blackburne J. in Nationwide
Building Society v Various Solicitors,239 the idea has long lain dormant. With the
decision in Addlesee v Dentons Europe LLP240 discussed at the end of the preced-
ing section, the “once privileged, always privileged” maxim continues to hold good
under English law.
237 [1998] 1 All E.R. 673.

238 R. v Derby Magistrates’ Court, Ex p. B [1996] A.C. 487 at 513.
239 [1999] P.N.L.R. 52.
240 [2019] EWCA Civ 1600.
[644]

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CHAPTER 6

JOINT AND COMMON INTERESTS

materials and instead it often arises as a result of a contractual entitlement. Accord-

2. JOINT RETAINERS AND JOINT INTERESTS

instruct a solicitor in relation to a property transaction. In the event of proceedings

6-014 Identifying joint interest relationships Similar consequences ought to follow

18 [2014] EWHC 2294 (Ch) at [52].

interest, so long as the communications occurred while that interest subsisted; in

22 [2011] EWHC 1686 (Ch) at [18].

retained by a corporation, officers of that corporation cannot prevent it waiving privilege

46 Krok v Szaintop Homes Pty Ltd (No.1) [2011] VSC 16.

6-031 Companies, partnerships and corporations Principles similar to those by which

49 [2014] EWHC 2294 at [63].

63 [2011] EWHC 2583 (Admin) at [39].

be said to coincide, although one commentator has suggested such an interest

settled. In subsequent litigation between them, in which Barca disputed Wimpey’s

71 [1980] 1 Lloyd’s Rep. 598 at 614.

6-046 Disappointed beneficiaries This section is concerned with a situation in which

74 [1995] 1 Lloyd’s Rep. 692 at 702.

6-053 In Canada, there seems to be a well-established exception to privilege in rela-

Termination of the joint interest—disputes between the parties to the

6-058 These comments were used to found a disclosure application in Cadogan

In relation to companies, difficulties can sometimes arise in trying to determine 6-061

95 [2011] EWHC 2286 (Ch) at [59].

petition that Harman J. accepted constituted hostile litigation so as to make the

100 [1991] B.C.L.C. 418 at 422.

105 [2015] EWHC 2681 (Ch) at [20]–[21].

110 [2009] NSWSC 789 at [54].

6-073 In the same case, Mullighan J. said:

6-075 Final considerations Although the nature of the beneficiary’s entitlement to

112 (1995) 64 S.A.S.R. 73 at [78].

3. COMMON INTEREST PRIVILEGE

Common interest privilege: the principles

Note Briggs J.s comments discussed at para.6-119 below.

122 [1981] Q.B. 223 at 243.

124 [1981] Q.B. 223 at 243.

Department)133 Colman J. noted that Lord Denning’s analysis in Buttes Gas of

136 [1996] 2 Lloyd’s Rep. 640.

A further decision here is Winterthur Insurance Company v AG (Manchester) 6-096

Common interest privilege and co-defendants

152 [1995] 2 Lloyd’s Rep. 84 at 88.

Who can waive common interest privilege?

6-107 In Motorola, certain defendants—the applicants—sought a declaration that four

162 [2009] 2 SLR(R) 385.

166 [2015] SGHC 228 at [22]–[23].

169 [2018] EWHC 23 (Comm) at [92].

Conflicts of interest and joint and common interests

170 [2018] EWHC 23 (Comm) at [94]–[97].

himself personally in Californian proceedings which were in the event

6-121 This decision is of course a consequence of the ruling in Bolkiah v KPMG in

173 [2012] EWHC 1176 (Ch) at [11].

6-132 In Shlosberg v Avonwick Holdings Ltd, Arnold J. rejected an argument that

881 was also wrongly decided.

203 [2016] EWCA Civ 1138 at [63].

206 Re International Power Industries Ltd [1985] B.C.L.C. 128.

whereas s.306 provides, in relation to bankruptcy, that:

217 [2017] EWHC 1825 (Ch); [2018] 2 W.L.R. 73 at [241].

5. THE DURATION OF THE PRIVILEGE

220 [2019] EWCA Civ 1600 at [90].

225 (1905) 38 ILT 7.

231 See Ch.1, Sections 2 and 3.

237 [1998] 1 All E.R. 673.

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