Hellard & Anor v Mitchell (Rev 1)

Hellard & Anor v Mitchell (Rev 1)

The implied waiver of privilege resulting from the claimants’ proceedings for professional negligence against the defendant solicitors extends to all communications and evidence relating to the privileged advice, including counsel’s working papers, notes, and recollections, as fairness requires the avoidance of cherry-picking and the complete opening up of the relevant professional relationship.

Parties
Claimant: Kevin Hellard & Anor.; Defendant: Irwin Mitchell
Jurisdiction
England and Wales
Judgment Date
21 August 2012
Procedural Posture
Civil / Interlocutory Application for Declaration on Waiver of Privilege
Outcome
Declaration granted
Legal Topics
Legal Professional Privilege, Waiver of Privilege, Solicitor Client Relationship, Counsel's Advice, Bankruptcy Trustees' Powers
Civil Procedure Professional Negligence Legal Professional Privilege Waiver of Privilege Solicitor Client Relationship Counsel's Advice Bankruptcy Trustees' Powers

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Parties

Kevin Hellard & Anor.

Claimant

Irwin Mitchell

Defendant

Procedural Posture

Civil / Interlocutory Application for Declaration on Waiver of Privilege

Legal Issues

  1. 1 Whether the bringing of proceedings for professional negligence against solicitors constitutes an implied waiver of legal professional privilege in respect of counsel's advice and related communications
  2. 2 Whether the waiver extends to counsel's working papers, notes, and recollections, or is limited to the solicitors' file

Ratio Decidendi

The implied waiver of privilege resulting from the claimants’ proceedings for professional negligence against the defendant solicitors extends to all communications and evidence relating to the privileged advice, including counsel’s working papers, notes, and recollections, as fairness requires the avoidance of cherry-picking and the complete opening up of the relevant professional relationship.

Court Disposition

Declaration granted

Orders

  • Declaration that by bringing these proceedings, the claimants have impliedly waived privilege in respect of all communications and evidence relating to counsel’s advice, including counsel’s working papers, notes, and recollections.