Hooper v Duncan Lewis (Solicitors) Ltd & Ors [2010] BPIR 591

The ability of the Trustee in Bankruptcy or Liquidator to apply to Court for orders of disclosure and private examination is a powerful weapon in the armoury of an Insolvency Practitioner (”IP”), seeking to unravel the financial affairs of a bankrupt or a company particularly given an IP usually enters his or her office as a stranger. What was interesting about this case was that such orders are more often than not utilised to seek information from a bankrupt or a former company director who have mandatory statutory obligations to assist the IP in the execution their duties. In the matter of Hooper v Duncan Lewis (Solicitors) Ltd & Ors [2010] BPIR 591 (”Hooper”) the Trustee in Bankruptcy sought disclosure of solicitors’ files, not of the bankrupt but of companies to which the bankrupt had been linked. In addition the Trustee in Hooper sought that a solicitor of the firm from which the files in question had been sought be privately examined. The case considered matters of legal professional privilege and the importance of the balancing act that the Court has to consider in determination of such an application, between on the one hand the IP’s requirement for the information and the oppression applicable to the respondent of such an application. In Hooper it was held that the right to assert privilege was not the solicitors but that of the client. The solicitors owed a duty of confidentiality to the client which could be catered for. Further, in Hooper the Court ordered the private examination of the solicitor who the Trustee believed had information of relevance to the bankruptcy estate. The case in echoes the decision in Re Murjani [1996] 1 WLR 1498 in which it was held that legal and professional privilege did not extend to anything which the client would have been lawfully required to reveal.

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