Court of Appeal unanimously upholds landmark ruling in relation to legal professional privilege

Published: 25/11/2016

Enyo Law’s Joel Seager and Max Hotham discuss the landmark Court of Appeal judgment handed down on 18 November 2016. The judgment means that a bankrupt's legal professional privilege does not vest in trustees in bankruptcy and accordingly, trustees cannot waive that bankrupt’s privilege in the documents and information that come into their possession.

On 18 November 2016, the Court of Appeal unanimously upheld a first instance judgment of Mr Justice Arnold that will be of interest to all insolvency practitioners. The judgment, by way of high level summary, means that a bankrupt’s legal professional privilege does not vest in trustees in bankruptcy and accordingly, trustees cannot waive that bankrupt’s privilege in the documents and information that come into their possession. However, after taking possession, trustees can make use of such documentation and information so long as it does not amount to a waiver of privilege and it falls within the discharge of their statutory functions.

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