In re Konigsberg (A Bankrupt): 1989

The court considered in the context of legal privilege the distinction between the disclosure of a document and its use at trial. Parties who grant a joint retainer to solicitors do not retain any confidence as against one another.
A bankrupt’s entitlement to legal professional privilege vests in the trustee so that neither the bankrupt nor the bankrupt’s solicitor can claim privilege under examination.
Peter Gibson J said: ‘Finally I return to the first ground on which Mr Walker relies for his submission that privilege cannot be asserted by Mrs Konigsberg against the trustee. Mr Walker referred me to the following passage in Phipson on Evidence, 13th ed., para.15-11, under the heading ‘Joint retainer’: ‘When two parties employ the same solicitor, the rule is that communications passing between either of them and the solicitor, in his joint capacity, must be disclosed in favour of the other – e.g. a proposition made by one, to be communicated to the other; or instructions given to the solicitor in the presence of the other; though it is otherwise as to communications made to the solicitor in his exclusive capacity.’
Thus if the communication with or from the solicitor in his joint capacity must be disclosed, privilege cannot be asserted by one of the two parties against the other in proceedings against each other. This is established by Shore v. Bedford (1843) 5 M. and G. 271. In that case the plaintiff having a claim against the defendant went with the defendant to the plaintiff’s solicitor, who agreed to write on the defendant’s behalf to a third party. The defendant made a statement in the plaintiff’s presence to the solicitor and the plaintiff subsequently brought an action against the defendant. It was held that the statement was not a privileged communication and questions could be asked of the solicitor’s clerk as to what had been said.’


Peter Gibson J


[1989] 1 WLR 1257


England and Wales


CitedCrescent Farm (Sidcup) Sports Ltd v Sterling Offices Ltd 1972
The plaintiffs, as purchasers, and the first defendants, as sub-purchasers, were parties to a conveyance of land which provided that the purchasers had the option of re-purchasing if, within the following 20 years, the first defendants wanted to . .

Cited by:

ApprovedFulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
CitedHellenic Mutual War Risks Association (Bermuda) Ltd v Harrison (‘The Sagheera’) ChD 1997
The dominant purpose test applies in relation to legal advice privilege in a different way from the way it applies in relation to litigation privilege. In legal advice privilege the practical emphasis is upon the purpose of the retainer. If the . .
CitedFord, Regina (on The Application of) v The Financial Services Authority Admn 11-Oct-2011
The claimant sought, through judicial review, control over 8 emails sent by them to their lawyers. They claimed legal advice privilege, but the emails contained advice sent by their chartered accountants. The defendant had sought to use them in the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Professions, Insolvency

Updated: 17 May 2022; Ref: scu.240160