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Update: professional negligence

Katie Papworth and Andrew Nixon review developments in professional privilege, valuers' duties and putting a date on damage

10 January 2011

Professional privilege

When is a privileged document not privileged? It was a matter considered in November, as the High Court in Birmingham heard the case of Mortgage Express v Mehrban Michael Singh Sawali [2010] EWHC B23 (Ch). The judges eventually ordered the delivery up of certain of the defendant borrower’s files to the claimant lender despite the fact the files contained documents protected by legal professional privilege.

It was the defendant’s position that the solicitors who had previously acted for both Mortgage Express and the borrower on a number of transactions owed a duty of confidence to the borrower. Mortgage Express relied on a declaration given by the defendant at the time of applying for the loan which authorised the solicitor to deliver the entire file relating to the ‘whole transaction’ to the lender on request.

Brown J found that the relevant clause of the declaration was unambiguous and therefore bindi...

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