In The Serendipity Centre Limited v Susan Tinson [2026] EWHC 349 (Ch), the High Court held that a company could not withhold legal advice from a former director who had already lawfully seen its contents.
The information was not confidential as against the former director, even if it remained confidential as against the rest of the world. As such, legal professional privilege could not be relied upon to withhold the documents. This is a grey area of law that is fact dependent. Other cases between former directors and companies have yielded different outcomes (see, for example, Suppipat v Siam Commercial Bank Public Company Ltd [2022] EWHC 381 (Comm); Candey Ltd v Bosheh [2022] EWCA Civ 1103). Nonetheless, this latest ruling sheds light on when a court will reject a claim for privilege over information which the other party has previously seen or of which they are already aware.
The court also distinguished between the scope of standard and specific disclosure orders. This case concerned an application for specific disclosure. Standard disclosure was confirmed to be limited by relevance, whereas specific disclosure is interpreted by reference to the actual wording of the order, regardless of relevance.
Background
The defendant was the founder, sole director and ‘A’ shareholder, and an employee, of the claimant company, which operates children’s homes accommodating female children with social and emotional needs. She was later dismissed as the director and as an employee but remained a shareholder of the company.
The company commenced proceedings against the defendant for alleged non-repayment of a director’s loan. The defendant sought and obtained an order from the County Court (HHJ Glen) dated 15 August 2025, that the claimant must obtain from its former solicitors the “full file … (inclusive of attendance notes and emails) relating to the loan agreement the subject of this claim…. And disclose the same to the Defendant… identifying any documents within that file that have been retained on the ground that legal professional privilege is claimed…” (the “Full File”).
However, its former solicitors removed several documents from the Full File which they claimed belonged to them (or perhaps someone else). These included:
- internal firm communications;
- draft documents and working papers;
- accounting records;
- internal file management records; and
- documents which related to other clients.
Additionally, the solicitors removed further documents which they claimed to be subject to a claim of legal professional privilege or to be irrelevant to the claim. The remainder of the Full File was then delivered to the defendant by the claimant.
As a result, the defendant made an application seeking disclosure of the Full File. Her application was based on the following grounds:
- the claimant was not entitled to withhold documents based on irrelevance, which the defendant argued was not provided for in the order;
- the claimant misapplied the exception for privilege and therefore wrongfully withheld documents; and
- the claimant failed to comply with the disclosure order for the Full File as it did not obtain the Full File from its former solicitors.
Decision
Both of the claimant’s grounds to withhold documents (relevance and privilege) were rejected. The High Court held that “there can be no privilege to withhold a document from another party on the grounds that it communicates confidential legal advice from the solicitor to the client, if that other party is already (lawfully) aware of the contents of that document” (at [31]). Consequently, the High Court ordered: 1) the claimant produce the remainder of the documents withheld by its former solicitors from the Full File and 2) the claimant ask its former solicitors for more details about the withheld documents which related to ‘other clients’.
In reaching this decision, the High Court’s reasoning was as follows:
Privilege
The Court held that legal professional privilege could not be asserted by the claimant because the documents were not confidential as against the defendant herself, even if they remained confidential as against third parties.
At the time the legal advice regarding the loan agreement was obtained from the claimant’s former solicitors, the defendant was the sole director and ‘A’ shareholder of the claimant. The advice was obtained on her instructions and for the benefit of the company under her control, therefore there was no separation of interests when the advice was given. As such, she was lawfully aware of the documents at the time they were created, and they could not be confidential as against her.
In making the decision, the Court considered Simkin v The Berkeley Group Holdings PLC [2017] EWHC 1472 (QB). In this case, a former director sought to assert privilege against a company over electronic files stored on the company server and emailed from his work computer to his private inbox. These documents were not password protected. It was held that privilege claim could not be asserted against the company because the files were not confidential as against the company, even if they remained confidential as against the rest of the world.
The Court also considered a second question of whether, if the documents were confidential, the claimant could nevertheless withhold them even where the defendant was a shareholder in the company. The claimant relied on the outcome in the Privy Council case of Jardine Strategic Ltd v Oasis Investments II Master Fund [2025] AC 1558, in which the ‘shareholder rule’ preventing such withholding had been deprecated. Whilst the Court acknowledged the Privy Council decision, it was not considered relevant on the facts as confidentiality was not present to begin with.
Relevance
The Court emphasised that the original disclosure order was not for standard disclosure under CPR 31.6 (requiring the claimant to disclose documents which support or adversely affect another party’s case). Rather, it was an order for specific disclosure under CPR 31.12. This requires the scope of the order to be judged by the exact words used in the order, as opposed to being judged by relevance as is the case for standard disclosure. Therefore, relevance was not a limitation to the disclosure.
The wording of the order was ambiguous, as the claimant’s former solicitors did not hold any single file which related only to the defendant’s loan agreement. Instead, they held a file related to the company’s restructuring, which included advice about the loan agreement.
In order to give proper effect to the 15 August order, the Court interpreted the order to mean the full file of documents relating even in part to the loan agreement. Any other interpretation of the wording would lead to disclosure of a non-existent single and particular file, or only part of the file which contradicted the wording of a “full file”.
Therefore, the claimant was not entitled to withhold documents on the basis of irrelevance.
The Full File
The defendant complained that the claimant failed to obtain the whole file from its former solicitors, as certain categories of documents were withheld. The solicitors divided their files into a part which they considered belonged to their former client and a part which belonged to them. This was in line with Law Society guidance in a Practice Note dated 26 July 2022.
The Court noted that the disclosure order was addressed to the claimant and not to the solicitors, therefore the solicitors were not required to do any more than the general law required: they had only to deliver their client’s property on demand, but not their own property.
It was held that the solicitors were entitled to separate out documents within the categories of internal communications, draft documents and working papers, accounting records and internal file management records. These were accepted to be documents that would belong to solicitors and not to their clients.
However, the documents relating to other clients were less clear, as they could relate to more than one client but belong only to one (e.g. where a firm acts for both sides in a conveyancing transaction). The Court directed the claimant to ask its former solicitors for more details about these documents and to provide answers to the defendant. The defendant would then have the choice to restore her disclosure application in relation to these documents.
Why does this matter?
The decision highlights how privilege cannot be asserted where communications are not confidential as between the party themselves, even if they remain confidential as against third parties. Alongside the decision in Simkin v The Berkeley Group Holdings PLC, this emphasises the importance of proving confidentiality between former directors or employees and companies. Where former directors or employees are lawfully aware of legal advice, the company cannot rely on legal professional privilege as against that director or employee. Similarly, the case of Simkin v The Berkeley Group Holdings PLC supports the argument that where information is stored on company servers in a non-confidential manner (i.e. without passwords), former directors cannot assert privilege over the files against the company.
The decision also confirms the importance of the type of disclosure orders and compliance. If a standard disclosure order is granted, relevance will be a condition of disclosure. Otherwise, a specific disclosure order is interpreted only by reference to the actual wording of the order, regardless of relevance to the claim.
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