header-logo header-logo

03 February 2011 / Steven O'Sullivan
Issue: 7451 / Categories: Features , Profession
printer mail-detail

Disclosure or discretion?

How closely should solicitors guard a purchaser’s file from the lender? Steven O’Sullivan reports

Recession and falling property prices bring repossessions, even with historically low interest rates. Lenders who sell property at a loss inevitably look to see if there is any way to recoup those losses. The buyer’s solicitor (who normally acts for the lender too), with compulsory professional indemnity insurance, is an obvious target. The first step is to request the solicitor’s file. How should a solicitor respond to such a request? Should the file be handed over lock, stock and barrel?

The default position is that, absent the borrower’s consent or prima facie evidence of borrower fraud, the solicitor should not disclose the parts of the file that are privileged and/or confidential to the borrower. See para 8(c) of the SRA’s Guidance to rule 4 of the Solicitors’ Code of Conduct 2007 and Nationwide BS v Various Solicitors [1999] PNLR52, per Blackburne J who held that “it was the lawyer’s duty to claim privilege on behalf of the client or former

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Walkers—Muriel Marseille

Walkers—Muriel Marseille

Ashurst's Chief Risk Officer joins Walkers

Excello Law—John Osborne

Excello Law—John Osborne

Northern family lawyer John Osborne joins Excello

mfg Solicitors—Rebecca Rogers, Kennedy Langley & Victoria Griffiths

mfg Solicitors—Rebecca Rogers, Kennedy Langley & Victoria Griffiths

Trio of promotions announced at Kidderminster law firm mfg Solicitors

NEWS
A sole director can conspire with their own company for the purposes of the tort of unlawful means conspiracy, the High Court has ruled in a judgment with potentially wide implications for business disputes
The Court of Appeal has reinforced that domicile depends on intention rather than residence alone, in a significant post-Brexit ruling on cross-border financial remedy claims
The Chancery Division's long history comes to an end this autumn as it is reborn as the Business and Property Division, prompting questions over whether the shake-up is really necessary
The Financial Conduct Authority (FCA) continues to show that failing to disclose regulatory issues can attract harsher consequences than the original misconduct itself
Rejecting a generous settlement can prove an expensive mistake, as two recent high-profile cases demonstrate
back-to-top-scroll