Former Directors & Legal Privilege

Serendipity Centre Ltd v Tinson is a recent case in which the Court permitted a former director to access privileged documents from their former company. 

The question at the heart of this decision was whether the documents for which privilege was claimed were sufficiently confidential to the company as against the former director. 

Relying on decisions such as Simpkin v The Berkeley Group Holdings PLC [2017] EWHC 1472 (QB), [2017] 4 WLR 116 and Brake v Guy [2022] EWCA Civ 235, the Court concluded that the claimant company was not entitled, as against their former director, to claim privilege for the documents containing legal advice, stating: “In my judgment, 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” (see paragraph 31).

Emphasis appears to have been placed on the fact that the former director was aware of the contents of the privileged documents at the time she was a director; she had instructed the solicitors, and she had received the advice. This was not a case where a director who had the right of access to documents in which the company could claim privilege, but who never in fact saw them, then sought to see such documents after ceasing to be a director. 

The circumstances in Serendipity also differed from those cases where a third party tries to examine a document over which the company could assert privilege. Simply showing the document confidentially to a director does not take away the privilege with respect to everyone else: please see paragraph 29 and Seven Network Ltd v News Ltd [2005] FCA 864.

Questions regarding the so -called “shareholder rule” were raised in this case, with the Court confirming they were bound by the decision of the Privy Council in Jardine Strategic Ltd v Oasis Investments II Master Fund Ltd (No 2) [2025] AC 1558 (Jardine), stating: “the fact that the defendant was and is a shareholder in the claimant company would not prevent the claimant from withholding documents from her on the grounds of legal privilege, if such privilege were otherwise established”, (see paragraph 35). However, the decision in Jardine did not determine the outcome here, given that the Court had already found that there was no confidentiality as against the former director.

For more information about the law, technology and practice of disclosure, contact Tom Whittaker or David Hine.

This article was written by Stacie Bourton and Jacob Berger.