O’Rourke v Darbishire: HL 1920

Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own benefit, with a precatory expression of his wishes that it should be used for charitable purposes. Two further codicils 1886 extended the first codicil’s gift to the executors. Sir Joseph’s intestate successors would have been Mrs Uniacke (as to realty) and Mrs Uniacke and Mrs McGowan (as to personalty). Mrs McGowan threatened to challenge the will and codicils, but in 1889 there was a compromise between all interested parties. In 1916, after Mrs Uniacke, Mrs McGowan and the executors had all died, Mrs Uniacke’s administrator (Mr O’Rourke) sought to challenge both the will and codicils and the compromise, alleging fraud by Mr Darbishire (who was one of the executors and had been Sir Joseph’s solicitor). Mr O’Rourke sought disclosure of documents containing legal advice given to Sir Joseph during his lifetime, and to his executors after his death.
Held: The House dismissed Mr O’Rourke’s appeal. He had not made out even a prima facie case that the will and codicils were invalid, or that the communications had promoted fraud. Mr O’Rourke’s relied on a ‘proprietary right’. A cestui que trust, in an action against his trustees, is generally entitled to the production for inspection of all documents relating to the affairs of the trust. It is not material whether this is seen as a paramount proprietary right in the cestui que trust, or as a right to be enforced under the law of discovery, since in both cases an essential preliminary is either the admission, or the establishment, of the status on which the right is based.
Viscount Finlay, Lord Sumner, Lord Parmoor
[1920] AC 581, [1920] All ER 1
England and Wales
Cited by:
CitedVadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedRush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
CitedRush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
CitedMartin and Others Gabriele v Giambrone P/A Giambrone and Law QBNI 5-Mar-2013
The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The . .
CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.180360