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Court of Appeal upholds transfer of privilege in joint retainer files

Travelers Insurance Company Ltd v Armstrong & Anor [2021] EWCA Civ 978

On 1 July 2021, judgment was handed down in a significant appeal by Travelers Insurance Company Ltd, the insurers of leading breast implant supplier Transform Medical Group (CS) Ltd, against Travelers’ Insolvency Act administrators, Martin Armstrong and James Patchett and its joint solicitors, Berrymans Lace Mawyer LLP. Christopher Boardman KC acted for the successful first respondent.

Dismissing Travelers’ appeal against the order of Andrew Hochhauser KC, the Court of Appeal upheld the principle that legal professional privilege passes to a successor in title assignee and applied it for the first time to a situation where the privilege was in the files of jointly instructed solicitors and disclosure was against the wishes of the insurer. As a result, Travelers could not prevent the administrators from passing BLM’s joint retainer files to a trustee acting for the benefit of the PIP claimants against whom Travelers and BLM are in litigation.

Insurers should take note of this unwelcome clarification to their legal position. Permission to Appeal was obtained on the basis of the general importance and wide application of this decision. Travelers has vigorously sought to protect its privilege in the papers being undermined and the PIP litigation files passed to its opponents in the PIP litigation.

You can read the full judgment here.