16 April 2015Print This Post

Legal professional privilege was waived, High Court rules in probate dispute

Probate: dispute raises privilege issue

Probate: dispute raises privilege issue

The High Court has rejected an application to strike out part of a negligence claim on the grounds that they referred to matters protected by legal professional privilege.

Mr Justice Newey said the re-amended particulars of claim referred to communications between Suffolk law firm Roythornes and an accountant and friend of Dick Dring, acting as executors of his estate.

The court heard that Mr Dring’s will and codicil, both drawn up by Roythornes, had become the focus of proceedings brought by daughters of his wife’s brother and sister-in-law.

Newey J rejected an argument that privilege could only be waived where the person entitled to it was aware of their rights. He said privilege could be “waived by inadvertence at any point” and not only by disclosure at trial, or by list and inspection.

“There would, moreover, appear to be no principled reason for allowing privilege to be waived by mistake in those particular circumstances, but not in others.”

The court heard in Birdseye and another v Roythornes and others [2015] EWHC 1003 (Ch), that Mr Dring had executed a codicil, providing for Manor Farm to be given to his wife’s sister-in-law, Rosemary Cooke.

Shortly after Mr Dring died, Mrs Cooke died. Newey J said Roythornes told the claimants, Mrs Cooke’s daughters and the administrators of her estate, that Manor Farm was owned by a company, Dring Bros, and as a result the codicil could be of no effect.

“Mrs Cooke’s daughters responded by asserting claims against Mr Dring’s estate, in particular on the basis of proprietary estoppel,” Newey J said.

“In time, a compromise was achieved under which Mrs Dring varied her husband’s will so that it provided for a legacy to Mrs Cooke of £300,000. In return, Mrs Cooke’s daughters agreed not to make any claims against Mrs Dring, her husband’s estate or Dring Bros. The agreement expressly stated, however, that the daughters were not prevented from bringing a claim against Roythornes.”

Newey J said Mrs Cooke’s daughters issued the present proceedings in 2012, alleging that Roythornes had acted negligently in relation to the preparation of Mr Dring’s codicil.

He said that paragraph 17 of the re-amended particulars of claim alleged that Roythornes had “negligently failed to investigate the beneficial ownership of the farm”.

The judge said the paragraph mainly concerned communications between the law firm and Mr Dring’s accountant, Roberto Pola, and his friend, John Doubleday, both men acting as executors of his estate.

Along with Roythornes LLP, Mr Pola and Mr Doubleday are among the defendants in the proceedings.

Mr Pola applied in November 2014 for paragraph 17 to be struck out on the grounds that the evidence was privileged and the privilege had not been waived.

However, Mr Justice Newey ruled that the communications between the executors and Roythornes would have been privileged had privilege not been waived by both Mr Pola and Mr Doubleday. He dismissed the application.

By Nick Hilborne

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