The Serendipity Centre Limited v Susan Tinson [2026] EWHC 349 (Ch)

[2026] EWHC 349 (Ch)Case No BL-2026-BRS-000006(formerly G45YJ663)IN THE HIGH COURT OF JUSTICEVenue BUSINESS AND PROPERTY COURTS IN BRISTOLBUSINESS LIST (ChD)Venue Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 20 February 2026
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
THE SERENDIPITY CENTRE LIMITEDClaimantSUSAN TINSONDefendant
James Hannant (instructed by Lester Aldridge LLP) for ClaimantThe Defendant appeared in person for in personHearing Hearing dates: 9 February 2026
This judgment was handed down remotely at 10:30 on 20 February 2026 by circulation to the parties or their representatives by e-mail and by release to the National ArchivesHHJ Paul Matthews :

Introduction

[1]This is my judgment on an application by the defendant by notice dated 20 November 2025, supported by her witness statement of the same date, complaining of alleged non-compliance by the claimant with an order for disclosure made by HHJ Glen in the County Court at Southampton made on 15 August 2025, and also seeking further relief. This claim, and three others involving the same or related parties, was in fact transferred by HHJ Glen to the High Court, Business and Property Courts in Bristol, by order dated 28 November 2025. That order also provided that the four cases should be managed and tried together, and that the defendant’s application (and one by the claimant which I dealt with at an earlier hearing) should be dealt with by the Bristol court. The hearing of the application actually took place in a hybrid format, whereby the parties attended in person at the County Court at Southampton, and I appeared remotely by CVP from Bristol.

Background

[2]For the purposes of the present application, I will summarise the background to this matter very shortly. When it comes to the trial of these claims, the facts will have to be gone into in much more detail. The claimant company was incorporated on 25 February 2009. The defendant, who has a background in education, was the founder. She was also the sole director of, and holder of all the A shares in, the company, as well as an employee of it. The claimant company operates residential children’s homes accommodating female children with social and emotional needs. On 1 October 2019, the defendant was suspended from work by the company, and on 8 October 2019 she was dismissed. In another of the four claims, the defendant challenges the lawfulness of the dismissal. She remains however the sole holder of all the issued A shares in the claimant company.[3]On 12 May 2020, the claimant issued the present claim, seeking recovery of the balance of a director’s loan alleged to be owed by the defendant to the claimant. The defendant denies that she owes anything to the claimant. On 9 April 2021, a company called Serenvest Ltd, claiming to be the holder of the B shares in the claimant company, served a compulsory transfer notice on the defendant in relation to her shares, alleging that she was a “bad leaver” under the claimant’s articles of association, and therefore obliged to transfer her shares. The validity of this notice is challenged by the defendant in the third claim, issued on 3 June 2021.[4]Finally, on 25 March 2025, the defendant issued a yet further claim against the original holders of the B shares for various forms of relief, including a direction for a declaration of dividends. It will be seen that the first, second and third claims all involve the same parties, that is, the present claimant and defendant (though in the second and third claims their roles are reversed). But the fourth claim does not involve the claimant. Instead, it is between the defendant (as claimant) and (as defendants) the original holders of the B shares, as well as a man called Kevin Derbyshire, who is married to one of the other defendants in that claim, but who does not himself hold any shares.

The order of 15 August 2025

[5]It appears that, at the time that the loan agreement in this claim was being negotiated, the claimant employed Bond Dickinson as its solicitors, and they maintained a client file for the claimant. That firm has now merged with another to become Womble Bond Dickinson. The defendant sought an order from HHJ Glen that the claimant should obtain that client file from its former solicitors and disclose it to her. The order of 15 August 2025 made by

the judge provided by paragraph 1:

“The Claimant must obtain from Womble Bond Dickinson the full file of Bond Dickinson (inclusive of attendance notes and emails) relating to the loan agreement the subject of this claim between the dates previously supplied by the Defendant and disclose the same to the Defendant by 4.00pm on 26 September 2025, identifying any documents within that file that have been retained on the grounds that legal professional privilege is claimed in respect of them.”
[6]Although the lawyers retained by the claimant will know this, the other persons involved in this case (including the defendant herself) may not know that lawyers use different terms to describe different stages of the disclosure process. So I will briefly explain it here. The first stage is that the person with the disclosure obligation must inform the other party or parties of the existence of documents falling within the scope of the obligation (see CPR rule 31.2). Usually this is done by way of a list, in the Practice Form N265 (CPR rule 31.10, PD 31A paragraph 3.1). So, you disclose a document by saying that you have it (or at least had it) in your control. The second stage is to produce the document (if you still have it) to the other party or parties for inspection by that party or those parties (see CPR rules 31.3, 31.14, 31.15(a), (b)). But there are some exceptions to the obligation to produce for inspection, such as privilege (considered later). There may then be a third stage, at which copies of all or some of the documents in your control are supplied to the other party or parties (CPR rule 31.15(c)). In considering what has happened in this case, it is important to keep separate the two distinct concepts of(i) disclosure and(ii) production for inspection.[7]I have not been shown any reasons given by the judge for making his order of 15 August 2025, nor indeed the application which must have been made in order for him to make it (for it does not say that the court made the order on its own initiative). What I do have is a reference to the earlier order of 15 August in the order of 28 November 2025, also made by HHJ Glen. I have already referred to other provisions in this order. The second recital to the order of 28 November 2025 says this:
“AND UPON noting that neither the Claimant’s application dated 11 April 2025 nor the Defendant’s application dated 20 November 2025 are listed for hearing today, but noting in respect of the latter application that paragraph 1 of the order dated 15 August 2025 was not conditioned by relevance”
. The “Defendant’s application dated 20 November 2025” is of course the application with which I am now dealing in this judgment. I will return to the effect of this recital later.[8]In the meantime, it will be noted that this order was made against the claimant, and not against Womble Bond Dickinson(as it might be, for example, on an application under CPR rule 31.17). Therefore, Womble Bond Dickinson’s obligation was one arising, not under the order itself, but simply under the general law relating to solicitors and their clients, where a client requests the supply of its own file. This general law obligation on solicitors is to deliver up to their former client the documents to which it is entitled. Under the terms of the order, however, the claimant’s obligation was to obtain from their former solicitors whatever they could of the documents set out in the order, and then to disclose them to the defendant. That order could not be construed as requiring the claimant to disclose (let alone produce) to the defendant documents which it did not have and to which it was not entitled.

Implementation of the order

[9]As set out in their letter to the claimant’s solicitors dated 12 September 2025, Womble Bond Dickinson reacted to their former client’s request for its client file by locating and going through that file, and separating it into two parts. These were the part which they considered belonged to the client, and the part which they considered belonged to them (or perhaps someone else). This approach was in accordance with the relevant guidance of The Law Society (contained in a Practice Note dated 26 July 2022, and available on line). In relation to the latter category, they withheld documents falling into five categories, namely,(i) internal WBD communications,(ii) draft documents and working papers,(iii) accounting records,(iv) internal file management records, and(v) documents “which relate to other clients”. Further, it will be noted that the order of the judge used the phrase “between the dates previously supplied by the Defendant”. Those dates were May 2013 to December 2014. Accordingly, Womble Bond Dickinson further withheld documents in the file falling outside those dates. They then supplied to the claimant’s solicitors the remaining part, which they considered belonged to their former client (ie the claimant). I will return to consider the exercise carried out by Womble Bond Dickinson later in this judgment.[10]Time for compliance by the claimant with the order of 15 August 2025 was extended by agreement to 10 October 2025. As set out in their letter to the defendant of that date, the claimant’s solicitors, between receipt of the documents supplied to them by Womble Bond Dickinson and that date, themselves went through those documents. They were entitled to do this, because of the words in the order “identifying any documents within that file that have been retained on the grounds that legal professional privilege is claimed in respect of them.” As stated in the order, their obligation was to “disclose” all the documents, which as I have already explained means to disclose theirexistence to the defendant, but preserving their right to claim privilege from production of them to the defendant. If the claim to privilege were challenged, but nevertheless established, in relation to any of the documents, then, although the defendant would know of their existence, she would not actually see them.[11]In their letter of 10 October 2025, the claimant’s solicitors said this:
“In line with Paragraph 1 of the Order we enclose: 1. A list of the documents enclosed with this letter (638 in total); 2. A list of the documents withheld (1246 in total); and 3. A copy of the 638 documents referred to in the list at point 1 above. Paragraph 1 of the Order requires our client to provide you with copies of any documents received from Womble Bond Dickinson that relates to the loan agreement between the dates May 2013 and December 2014. Our client is also required to identify any documents retained on the grounds that legal professional privilege is claimed in respect of them. The enclosed document which is referred to at point 2 above contains a column called ‘Disclosable’. Within that column there are the following entries: 1. WITHHELD – Not relevant to claim; 2. WITHHELD – Not relevant to claim – Privileged – Do Not Produce; and 3. WITHHELD – Privileged – Do Not Produce. Where the entry “WITHHELD – Not relevant to claim” appears next to a document it means that we have identified that the document received from Womble Bond Dickinson does not relate to the loan agreement and therefore does not need to be provided. Such documents would not need to be disclosed pursuant to CPR 31.5. Where the entry “WITHHELD – Not relevant to claim – Privileged – Do Not Produce” appears next to a document it means that the document is deemed not to relate to the loan agreement and that in any event the document benefits from legal professional privilege and does not need to be provided. Where the entry “WITHHELD – Privileged – Do Not Produce” appears next to a document it means that the document is deemed to be relevant to the loan agreement but is in any event not provided to you on the grounds that legal professional privilege is claimed in respect of that document.”
I make clear that that is all that the claimant’s solicitors said as to the claims which their client made to privilege. I add to this only that the letter from the claimant’s solicitors to the defendant enclosed a copy of the letter from Womble Bond Dickinson dated 12 September 2025, explaining the documents provided to the claimant’s solicitors.

This application

[12]The defendant’s complaint the subject of this application is threefold, as set out in her witness statement. First, she says that the claimant has not complied with the order of 15 August 2025, because it has not disclosed to her the “full file” ordered. Instead, she says, the claimant has withheld documents from the file, not only on the basis of privilege (which is provided for in the order) but also on the grounds of relevance (which she says was not). Second, she says that the claimant has misapplied the exception for privilege, and has thereby withheld from her documents that she ought to have. Third, she says that the claimant failed to obtain the whole file from Womble Bond Dickinson, and should have sought the directions of the court, but did not do so.[13]The claimant’s response to the first of these complaints (failure to comply with the order of 15 August) appears in its skeleton arguments prepared for the hearings on 28 November 2025 and 9 February 2026. The former says the order was complied with on 10 October 2025. The latter says that this complaint is misconceived, because the claimant has disclosed that part of the client file “relating to the loan agreement”. The claimant enlarged on this at the hearing before me. As to the second and third complaints (misapplication of the exception for privilege, and failure to obtain the whole file), neither of the two skeletons deals with these beyond passing mention, and neither was substantively addressed at the hearing.

The construction of the order

[14]Although I have not been shown the application which led to the order of 15 August 2025, it seems clear from the order itself that this was not an application for standard disclosure (under CPR rule 31.6), but instead one for specific disclosure (under CPR rule 31.12). I therefore respectfully disagree with the approach of the claimant’s solicitor Benjamin Kerley, when he said, in his witness statement of 11 December 2025, at [11], that he applied the test for standard disclosure in CPR rule 31.6. In my judgment, the width of the disclosure that was ordered is to be judged, not by reference to the categories of standard disclosure (which relate to various degrees of relevance), but instead by reference to the words actually used in the order. This is supported, and indeed emphasised, by the recital in the order of the same judge of 28 November 2025, where he says that the order “was not conditioned by relevance”.[15]The descriptive words in the order are “the full file of Bond Dickinson (inclusive of attendance notes and emails) relating to the loan agreement the subject of this claim between the dates previously supplied by the Defendant”. I draw attention to the words “the full file” and the words of inclusion in the brackets. These appear to point to a single and complete file. On the other hand, these words are followed by the words “relating to the loan agreement the subject of this claim”. They are then further qualified by the words “between the dates previously supplied by the Defendant”. The problem is that there was no one file maintained by Womble Bond Dickinson which related only to the loan agreement. The file which that firm did maintain was one relating to advice in relation to the restructuring of the company, which included advice about the loan agreement in question.[16]So, the first question is one of construction of the order of HHJ Glen. Was he ordering the specific disclosure of(i) a single and particular file, which had to relate solely to the loan agreement (in which case there is no such file, and the order does not require anything),(ii) that part of any file which related to the loan agreement (in which case it requires the disclosure of that part), or(iii) the whole of any file which related even in part to the loan agreement (in which case it requires the disclosure of the whole file)? I do not think that there are any other realistic possibilities than these three.[17]In my judgment, the judge cannot have meant to order disclosure only if there was a file bearing a particular name or relating exclusively to the loan agreement. He was being practical in trying to provide the defendant with the documents that she said she needed. No doubt she told him that there was a file. The second possibility does not square with the words used in the order itself. The order says “the full file”, not “that part of the file”. Nor is it consistent with the recital inserted by the judge in his later order. He says that the earlier order was “not conditioned by relevance”. Yet, if the second possibility were correct, that is exactly what it would be, the part “relating to” the loan agreement.[18]The third possibility is supported by the words “the full file”, and the words of the recital to the later order. But the words “relating to the loan agreement” do not sit so easily with that. However, they can be accommodated by implying the words “even in part” after “relating”. On the whole, I think this is the construction which does the least damage to the words actually used by the judge, and I shall adopt it. The consequence is that, by seeking to exclude documents which are considered by the claimant’s solicitors to be not relevant, and outside the scope of standard disclosure under CPR rule 31.6.the claimant has failed to comply with the order of 15 August 2025. Subject to the claimant’s application for a variation of the order (treated later), it must now produce the remainder of the documents supplied by Womble Bond Dickinson, subject only to the exception for documents for which privilege can properly be claimed (with which I deal next in this judgment). Exception for legal privilege Scope of the privilege

Exception for legal privilege

[19]The only exception made by the order (apart from the date range) is for documents for which privilege can properly be claimed. The defendant raises a point on the application of that exception to the present case. I must now turn to consider this. In doing so, I bear in mind that the exception in the order for documents covered by privilege is not for documents in respect of which the claimant could claim privilege as against third parties. It is an exception for documents in respect of which the claimant could claim privilege as against the defendant. The defendant says that she is a person against whom the claimant could not claim such privilege.[20]In her witness statement made on 20 November 2025 in support of the application, she says:
“10. [The claimant’s solicitors’] email dated 6 October 2025 … purports to justify their review by asserting that privilege belongs to the company and not to me personally, relying on: ‘Three Rivers District Council v Bank of England (No 5) [2003] QB 1556’. 11. That position is misconceived. At the time the advice was given, I was the sole director, controlling mind, and majority and only A shareholder of [the claimant]. There was no separation of interests. Any privilege was therefore joint and cannot now be asserted against me by the company. 12. Furthermore, Three Rivers (No 5) is not applicable to small or owner-managed entities. The Claimant’s reliance on it to justify secrecy over documents that were created under my own instruction is misplaced and contrary to the intent of the August Order.”
[21]She goes on to say:
“13. Even if privilege were capable of applying, the Claimant has failed to provide a compliant privilege log under CPR 31.19(3). Instead, the withheld disclosure schedule contains only vague details of the emails, without details of the sender, recipient(s) or brief description of its content. 14. I also note that there are some emails being withheld record ‘The Mallows’ and Directors Loan’ under the subject heading and some dates 2025, which I assume to be incorrect.”
[22]I deal first with the question whether there can be any privilege as between the claimant and the defendant, given the defendant’s position as sole director and majority shareholder at the time of the advice, and her continuing position as shareholder today. As I see it, there are two different points in play. One is that raised by the defendant, that any privilege would be joint between the parties and therefore cannot be asserted by one as against the other. The other (not expressly raised by the defendant, but plainly there on the facts) is whether the documents concerned are confidential as between the parties at all, so as to allow the privilege to be engaged at all.[23]A few days after the hearing was over, and whilst I was considering the matter, I came across three judicial decisions that had not been cited to me at the hearing, but which appeared to bear on these points. Two of them were concerned with the question whether the communications in question were confidential as against the defendant at all, and therefore the privilege could be asserted as against her: Simkin v The Berkeley Group Holdings PLC [2017] EWHC 1472 (QB), [31]; Brake v Guy [2022] EWCA Civ 235, [64]. The third was concerned with the question whether, if they were confidential as against the defendant, nevertheless the claimant could not withhold them from the defendant because she was a shareholder in the company: Jardine Strategic Ltd v Oasis Investments II Master Fund [2025] AC 1558, a decision of the Privy Council on appeal from the Court of Appeal of Bermuda.[24]I drew the parties’ attention to these three cases, and invited them to send me any short written submissions that they wished me to consider. Both parties did indeed send me short submissions, and I have considered them. The claimant submitted that the documents over which it was asserting privilege were “indisputably the company’s documents”. There was no “logical basis for [the defendant] to assert any entitlement to documents in respect of which the company enjoys privilege simply because she was once a director of the company”. The claimant went on to submit that, as a result of the third case, the so-called “shareholder rule” no longer formed part of English law. There was no basis for the defendant to assert joint privilege in her capacity as shareholder in the company.[25]For her part, in relation to the first two cases, the defendant submitted that the legal advice was obtained on her instructions and for the benefit of the company under her control, and that there was no separation of interests at the time that the advice was given. The company’s interests and hers were aligned. Therefore, the communications were not confidential as against her at the time that they were created. As for the third case, the defendant submitted that it was materially different because she was not merely a shareholder but also the sole director and controlling mind of the company. She said: “the issue here is not whether shareholders generally have a right to inspect privileged company documents. It is whether a company may assert privilege against its former sole director in respect of advice obtained during her directorship and under her authority”.[26]The claimant did not seek to reply to the defendant’s submissions. The defendant did reply briefly to the claimant’s submissions. This refined her position to say that she did not rely on joint interest or the so-called “shareholder rule”, and the Jardine Strategic case was irrelevant. Instead, the defendant reiterated that her position rested on the lack of confidentiality in the legal advice between the parties. Such confidentiality could not be created retrospectively.

Confidentiality

[27]Logically, the first matter to deal with is whether the documents for which privilege was claimed were sufficiently confidential to the claimant as against the defendant. Otherwise, they simply could not be privileged. In Simpkin v The Berkeley Group Holdings PLC [2017] EWHC 1472 (QB), [2017] 4 WLR 116, the claimant, who had been removed as a director of, and dismissed as an employee by, the defendant, sought to assert privilege in electronic files, not password protected, stored on the defendant’s server, and sent by email from his work computer to a private email mailbox. Garnham J said:
“31. It is common ground that it is a pre-condition to a claim of privilege that the document in question is confidential as against the person against whom the privilege is claimed (see Three Rivers [District Council v Bank of England (No 6) [2005] 1 AC 610] at paragraph 24 and BBGP v Babcock and Brown [2010] EWHC 2176 (Ch) at paragraphs 45-50) … ”
[28]The judge went on to hold that the files were not confidential as against the defendant. The quotation above was approved by Baker LJ (with whom Lewison and Asplin LJJ agreed) in Brake v Guy [2022] EWCA Civ 235, where he said:
“64. … The key point which I derive from Garnham J’s judgment in Simpkin (in particular at [31]) is that a claimant must demonstrate a reasonable expectation of privacy, or that the document is confidential, against the defendant … ”
[29]I emphasise that I am not concerned with the case where a third party seeks to inspect a document for which the company can otherwise claim privilege, because the document contains legal advice to the company which is confidential as against the third party. The mere fact that the document has already been shown in confidence to the director (see eg the decision of the Federal Court of Australia in Seven Network Ltd v News Ltd [2005] FCA 864, [56]) or indeed to a particular third party (USP Strategies Ltd v London General Holdings Ltd [2004 EWHC 373 (Ch), [21]), does not take away the privilege so far as the rest of the world is concerned.[30]Nor am I dealing with the 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, seeks to see such documents after ceasing to be such a director. That is a different case, as illustrated by the Australian decision in State of South Australia v Barrett (1995) 64 SASR 73. Instead, I am dealing here with the case where the former director was well aware of the contents of the otherwise privileged documents at the time that she was a director, and now seeks to have them produced again, on the basis that they are not confidential, and hence not privileged, as against her.[31]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. In the present case, at the time that the advice was obtained from Bond Dickinson, the defendant was the sole director of the claimant. She both gave the instructions and received the advice. No doubt she held that advice for the benefit of the claimant, and could not properly make use of it for her own private purposes, but she knew what it was. It was confidential as against third parties, but not confidential as against her. The consequence is that the claimant is not entitled, as against her, to claim privilege for the documents containing that legal advice.[32]The claimant’s argument, that the documents concerned belong to itself, and that there was no basis for the defendant to assert any entitlement to them, in my respectful view misses the point. The defendant is not asserting any privilege in, or other right in relation to, the documents. Instead, she is resisting the company’s claim to assert privilege in them against her. But, for the company to be able to claim that, the company must first show that the documents are confidential as against her, and in my judgment this the company cannot do. The fact that privilege can be asserted by the claimant against the rest of the world is irrelevant.

The “Shareholder Rule”

[33]The second matter is whether, if (contrary to my first conclusion) the documents were confidential as between the parties, the defendant’s position as a shareholder in the claimant company would have made any difference. In Jardine Strategic Ltd v Oasis Investments II Master Fund Ltd (No 2) [2025] AC 1558, the Judicial Committee of the Privy Council, on appeal from the Court of Appeal of Bermuda, held that there was no “rule in Bermudian law that a company cannot, in the course of litigation between it and shareholders or former shareholders, withhold documents from inspection on the ground that the documents are covered by legal advice privilege” (which the Judicial Committee called “the Shareholder Rule”).[34]Lord Briggs and Lady Rose (giving the advice of the Board, including Lords Leggatt, Burrows and Richards) said:
“80. The Board is satisfied that the Shareholder Rule forms no part of the law of Bermuda, and that it ought not to continue to be recognised in England and Wales either. Its only two advantages were its ancient lineage and its creation of a bright line. But the Board considers that its disadvantages easily outweigh those two advantages. The first is that its original justification was proprietary, but this basis for the Rule is wholly inconsistent with the proper analysis of a registered company as a legal person separate from its members such that the members have no proprietary interest in the funds of the company used to pay for the advice. The proprietary basis for the Rule was not supported by counsel for the respondents and has not for some time been supported either in reported cases or academic writings as a valid justification for the refusal to extend to companies a fundamental right to seek and receive legal advice in confidence. 81. Nonetheless the Board agrees with Nugee J (as he then was) in Sharp v Blank that the original justification for the Rule was the proprietary basis, not joint interest. The latter has been prayed in aid by those seeking to explain the continued existence of the Shareholder Rule in the light of the collapse of its original justification. In the Board's opinion, and this is its second main disadvantage, it cannot sensibly justify an automatic status-based denial of legal professional privilege between every company and all its shareholders … [ … ] 84. The Board has already made it clear that this is not the occasion for a general review of what has come to be known as joint interest privilege. The only matter which requires to be decided is whether the company shareholder relationship falls within that supposed general principle. For the reasons which follow, the Board considers that it does not. When the company shareholder relationship is looked at squarely on its own, it is clear that there is no, or at least no sufficient, analogy with those other relationships to justify its inclusion within the joint interest family of relationships. [ … ] 92. There remains the much narrower, more nuanced, basis for occasionally depriving a company of legal professional privilege in litigation with its shareholders, namely that advanced by Kawaley [JA] in the Court of Appeal. That approach would regard the existence of the relationship as only a threshold to entry upon the question whether the shareholder can demonstrate a sufficient joint interest in the obtaining and receiving of the advice, on the particular facts of the case. The Board is unable to accept Kawaley JA's formulation, still less his conclusion that it applies to disentitle the Company to legal professional privilege on the facts of this case. [ … ] 109. Although the Judicial Committee of the Privy Council is not a court of any part of the United Kingdom, it almost always applies a variant of the common law and either all or most of the Privy Councillors sitting on an appeal will be Justices of the Supreme Court. The logical consequence of this, Lord Neuberger said, was that decisions of the JCPC cannot be binding on any judge of England and Wales but that a decision of the JCPC, at least on a common law issue, should be regarded by courts at every level as being of great weight and persuasive value … [ … ] 113 … the members of the Board in the present appeal, all also being Justices of the Supreme Court, are firmly of the view that this decision should be regarded by courts in England and Wales as abrogating the Shareholder Rule for the purpose of litigation in those courts, and the Board so declares.”
[35]In these circumstances I am bound by the decision of the Privy Council to hold that 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. Given my conclusion on the first point, however, this does not make any difference in the result. The claim to privilege still fails.

Compliant privilege log?

[36]The defendant also submits that the claimant did not produce a “log” (or list) of the documents for which privilege is claimed that complied with the rules. The defendant refers to CPR rule 31.19(3), which reads:
“A person who wishes to claim that he has a right or a duty to withhold inspection of a document, or part of a document, must state in writing – (a) that he has such a right or duty; and (b) the grounds on which he claims that right or duty.” (a) that he has such a right or duty; and (b) the grounds on which he claims that right or duty.”
[37]But there are other provisions in the rules to which reference should be made. CPR rule 31.3 provides:
“(1) A party to whom a document has been disclosed has a right to inspect that document except where – [ … ] (b) the party disclosing the document has a right or duty to withhold inspection of it … ”
This means that, if a claim to privilege from inspection can be established, the exception in rule 31.3(1)(b) applies. [ … ] (b) the party disclosing the document has a right or duty to withhold inspection of it … ”[38]This is picked up in CPR rule 31.10, which provides:
“(1) The procedure for standard disclosure is as follows. (2) Each party must make and serve on every other party, a list of documents in the relevant practice form. (3) The list must identify the documents in a convenient order and manner and as concisely as possible. (4) The list must indicate – (a) those documents in respect of which the party claims a right or duty to withhold inspection; and (b) (i) those documents which are no longer in the party’s control; and (ii) what has happened to those documents.” (a) those documents in respect of which the party claims a right or duty to withhold inspection; and (i) those documents which are no longer in the party’s control; and (ii) what has happened to those documents.”
[39]There is also CPR PD 31A, which in part provides as follows: “3.1 The list should be in Form N265. 3.2 In order to comply with rule 31.10(3) it will normally be necessary to list the documents in date order, to number them consecutively and to give each a concise description (eg letter, claimant to defendant). Where there is a large number of documents all falling into a particular category the disclosing party may list those documents as a category rather than individually … [ … ] 4.5 If the disclosing party wishes to claim that he has a right or duty to withhold a document, or part of a document, in his list of documents from inspection (see rule 31.19(3)), he must state in writing:(1) that he has such a right or duty, and(2) the grounds on which he claims that right or duty. 4.6 The statement referred to in paragraph 4.5 above should normally be included in the disclosure statement and must indicate the document, or part of a document, to which the claim relates. [ … ] 6.1 A claim to withhold inspection of a document, or part of a document, disclosed in a list of documents does not require an application to the court. Where such a claim has been made, a party who wishes to challenge it must apply to the court (see rule 31.19(5)). [ … ].” (1) that he has such a right or duty, and (2) the grounds on which he claims that right or duty.[40]As stated in the practice direction, the “relevant practice form” for the purposes of rule 31.10(2) is Form N265. This provides for listing three classes of document:(1) those in the litigant’s control, to inspection of which no objection is taken,(2) those in the litigant’s control, to inspection of which objection is taken, and(3) those no longer in the litigant’s control. Where the litigant claims privilege from inspection (category (2) above) this must be set out in the second part of the list contained in Form N265, which is formatted as follows:[41]So, according to the form itself, the litigant is supposed to number and list the documents for which privilege is claimed, and to state the grounds on which the objection is taken, that is, the grounds of the privilege from production for inspection for each document. Of course, the privilege may not be the same for each document withheld, and the objection will have to be separately set out. However, there is no requirement, either in the rules themselves, in the practice direction or in the form to state more than this, and in particular no duty to state the dates of the documents, the parties to them or their contents.[42]Historically, the procedural rules scheduled to the Supreme Court of Judicature Act 1873 did not deal with the way in which the existence of privileged material was disclosed to opponents in litigation. However, it was the subject of decided cases. So, for example, in Taylor v Batten (1878) 4 QBD 85, Cotton LJ, giving the judgment of the Court of Appeal (Bramwell, Brett LJJ and himself) said this (at 87-88):
“The question arises as to documents, for which privilege was claimed on the ground that they consist of correspondence with the defendant's legal advisers, cases for the opinion of counsel and counsel's opinions. There is no question as to the first affidavit, it was clearly insufficient; it ran thus: ‘I have also in my possession or power certain documents, letters, and correspondence, which have passed between my legal advisers and myself in relation to the matters in question in this case, and with a view to my defence to the plaintiff's claim, and certain instructions to and opinions of counsel in relation to the same matters, all of which I claim to be privileged from production.’ This is clearly insufficient, as it only describes the documents as ‘certain documents, letters,’ &c, without any further identification. In the further affidavit, the second paragraph is as follows: ‘The documents referred to in paragraph 2 of my former affidavit are numbered 50 to 76 inclusive, and are tied up in a bundle marked with' the letter A and initialed by me.’ The plaintiff contended that this was insufficient, but, as I understand, he did not deny that it would have been sufficient, if it had referred to documents which the defendant was not unwilling to produce. In my opinion, if these documents had been merely scheduled in the ordinary way, and no objection had been made to their production, the description would have been amply sufficient for the purpose of identification. For all the Court requires, where there is no question of privilege or objection to produce the documents, is that they should be so far identified, that the Court can see that the documents referred to are produced if required. Then let us see whether further identification is required, if there is an objection to produce the documents. We must remember that the plaintiff is bound to take the affidavit as true, unless it can be shewn that there is some reason on the face of it why it cannot be relied on. The affidavit is sufficient if the documents are sufficiently identified. But it is said that the plaintiffs are entitled to be put in such a position as to test the truth of the affidavit by the description of the documents. That, however, is, in our opinion, erroneous. The only object of the affidavit is to enable the Court to order the documents to be produced, if it think fit to make an order to that effect; and if words are used which, if true, protect the documents, no further particularity is necessary than in the case of documents for which protection is not claimed. If an affidavit claiming protection for documents some of which are, while others are not, privileged did not sufficiently shew which were entitled to protection, the Court would either order production of all or, as under ordinary circumstances would be the proper course, allow the party an opportunity of making a further affidavit to identify the documents entitled to protection. But here the protection claimed applied to all the classes of documents mentioned in the schedule.”
[43]In Gardner v Irvin (1878) 4 Ex D 49, the same three judges sat again, and Cotton LJ said (at 53):
“The person seeking discovery is bound by the affidavit made by his opponent, and therefore it ought to be full. It is not sufficient for the affidavits to say that the letters are a correspondence between a client and his solicitor, the letters must be professional communications of a confidential character for the purpose of getting legal advice. I think that the plaintiffs are not entitled to have the dates of the letters and such other particulars of the correspondence as may enable them to discover indirectly the contents of the letters, and thus to cause the defendants to furnish evidence against themselves in this action.”
[44]These decision have been followed for many years, with claims to privilege becoming somewhat formulaic. An example from the last years of the operation of the RSC 1965, taken from Derby & Co Ltd v Weldon (No 7) [1990] 1 WLR 1156, 1175D-E), is “confidential correspondence, both original and copies, memoranda of instructions, opinions and other documents and notes of meetings and telephone conversations between the first and second defendants, their solicitors and counsel and other legal advisers, or any of them, and drafts of the same for the purpose of obtaining legal advice”.[45]Thus, in that case, Vinelott J refused to order the defendants, who had claimed privilege in those terms, to give any further particulars of the documents themselves. He said (at 1179A-B): “Where privilege is claimed for professional communications of a confidential character obtained for the purpose of getting legal advice, it has not in modern times been the practice to require the party claiming privilege to bundle and number them. The claim for privilege is treated as itself a sufficient description of them”.[46]The judge referred to statements by the defendants’ solicitors that they had been through the documents and were themselves satisfied that the claims to privilege were made out. He went on (at 1179H-80B):
“The plaintiffs, in my opinion, are clearly not entitled to go behind these assurances. It is important … that a claim for privilege should not be treated as if it were ‘pronouncing a spell, which, once uttered, makes all the documents taboo.’ It is, I think, for that reason, better that the claim should state that the documents for which privilege is claimed are described as ‘confidential communications passing between the client and his legal advisers for the purposes of obtaining legal advice,’ even though that formula may appear to be pleonastic … ”
[47]It is fair to say that the current rules, the CPR, have a different ethos from the RSC 1965, and recent decisions have shown more resistance to mere formulae. In putting forward an objection to producing documents for inspection, on the grounds of privilege, it is not enough to state, for example, that “they are by their nature privileged”. In Aztec Therapeutics Ltd v AstraZeneca AB [2016] EWHC 2759 (Ch), Chief Master Marsh said:
“15. During the course of the hearing of Astex’s application, the form in which the claim for privilege was made by AZ was described as ‘conventional’. I accept that the claim for legal advice privilege is described adequately. However, although it may have been conventional at one time to state that other documents are ‘by their nature privileged’, such a statement has no place in modern litigation, let alone litigation of very real complexity. It is clearly unhelpful, without describing the documents said to be privileged, to say that ‘their nature’ explains why they are privileged because the recipient of the list of documents has no way of knowing which documents, or classes of documents, are being referred to.”
[48]In the present case, the letter of 10 October 2025 from the claimant’s solicitors to the defendant did not list any documents, but simply said that the documents withheld had been withheld on the grounds of “legal professional privilege”, without more. This is clearly inadequate in modern practice. There should have been a statement describing the documents sufficient to explain why they were privileged from production, though not one such as to disclose any part of the substance of the communications, or indeed any pointers towards it which might permit a “jigsaw” reconstruction. However, given that I have held that the claim to privilege fails in any event, I need not consider that aspect further in this judgment.

The claimant’s failure to obtain the whole file

[49]The defendant’s third complaint is that the claimant failed to obtain the whole file from Womble Bond Dickinson. In her witness statement, the defendant refers to the letter from that firm to the claimant’s solicitors dated 12 September 2025, confirming that they had withheld certain categories of documents from those handed over to the claimant, as already set out earlier in this judgment. Then she goes on: “16. WBD assert that these documents belong to the firm and therefore fall outside the Court’s Order. This stance is incorrect. The August Order required the Claimant to obtain the full file, not merely those parts WBD chose to release. If WBD refused compliance, the Claimant should have sought the Court’s direction, instead, they acquiesced and attempt to shift responsibility. 17. [The claimant’s solicitors’] own correspondence of 6th October admits this, stating: ‘If there are any additional documents to be provided this week from the WBD file not already provided, then it will be for WBD to explain why the full file was not previously provided.’ (Exhibit ST5) This is a clear admission that the claimant has not obtained the full file as ordered.” ‘If there are any additional documents to be provided this week from the WBD file not already provided, then it will be for WBD to explain why the full file was not previously provided.’ (Exhibit ST5)[50]For myself, I do not read the letter of 6 October 2025 as an admission that the full file has not been obtained as ordered. Nevertheless, I go on to consider the defendant’s complaint. Earlier in this judgment, I explained what Womble Bond Dickinson had done with their client file, splitting it into two distinct parts, which they considered belonged(i) as to one part, to their former client and(ii) as to the other, to themselves. As to part (i), they handed over to the claimant’s solicitors only so much of that part as fell within the date range requested by the defendant. In dividing the file up between (i) and (ii), they were seeking to follow the guidance of The Law Society in its Practice Note. That Note was and is based on judicial decisions. I will briefly refer to three of them by way of illustration.[51]In Re Wheatcroft (1877) 6 Ch D 97, a client changed solicitors, and asked her former solicitor to provide her with copies of the letters she had previously sent him, as well as copies of the copies he retained of the letters he had written on her behalf. The solicitor was prepared to do so, but only on payment of a copying fee. The client insisted that they were her property, and was entitled as of right. She brought an action, but failed. Sir George Jessel MR held (at 98) “that the solicitor was entitled to retain the letters from the client and the copies of his own letters in his letter-book, as such letters and copies were his own property.”[52]In Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205, CA, the respondent firm of surveyors acted for the appellant council in advising on and valuing properties for rating purposes. On the termination of the retainer, the council claimed to be entitled to certain documents prepared by the respondent, and when their demand was refused, they brought an action for them. In the report they are listed as:
“Inspection notes, valuation sheets, summaries and plans relating to all the schools, council houses, public buildings, public works and undertakings, hospitals, convalescent homes and institutions and similar properties throughout the county; all the factory buildings in the Hinckley urban district; and two thousand particular hereditaments specified by name; and inspection notes, particulars and forms relating to railway ‘let out’ properties, together with correspondence, notes and other correspondence from the railway assessment authority.”
[53]But the claim failed, as did an appeal. MacKinnon LJ, with whom Goddard and Du Parcq LJJ agreed, said (at 216):
“If an agent brings into existence certain documents while in the employment of his principal, they are the principal's documents and the principal can claim that the agent should hand them over, but the present case is emphatically not one of principal and agent. It is a case of the relations between a client and a professional man to whom the client resorts for advice. I think it would be entirely wrong to extend to such a relation what may be the legal result of the quite different relation of principal and agent. These pieces of paper, as it seems to me, cannot be shown to be in any sense the, property of the plaintiffs, any more, as I suggested to Mr. Macaskie during the argument, than his solicitor client or his lay client could assert that his notes of the argument he addressed to us could be claimed to be delivered up by him when the case is over either to the solicitor or to the lay client. They are documents which he has prepared for his own assistance in carrying out his expert work, not documents brought into existence by an agent on behalf of his principal, and, therefore, they cannot be said to be the property of the principal.”
[54]In Green v SGI Legal LLP [2018] EWHC 2592 (QB), the question was “whether the Court … has the power to order a solicitor to make and supply to his client (or former client) copies of documents which are the property of the solicitor, subject to payment of reasonable costs for the task”. In considering that question, which arose on an appeal from a costs judge, Soole J went through most, if not all, of the authorities on the question what documents on a client file belonged to the client, and what to the solicitor. He said this:
“42. As to ownership, Miss Hynes does not dispute the general proposition that working papers prepared by professionals for their own assistance in carrying out expert work on behalf of the client are the property of the professional, not of the client: see LeicestershireCC (valuers) at pp 216-7; Chantrey Martin [v Martin [1953] 2 QB 286, CA] (chartered accountants). In the latter case the Court of Appeal added that ‘Even in the case of a solicitor there must, we should have thought, be instances of memoranda, notes, etc, made by him for his own information in the course of his business which remain his property, although brought into existence in connexion with work done for clients’ (per Jenkins LJ at p 293).”
[55]I have already made the point that the order of 15 August 2025 was not addressed to Womble Bond Dickinson, and so could not require that firm to do any more than the general law required. That general law required them to deliver up to their former client on demand the client’s own property, but not to deliver up that of the solicitors. The information before the court in this case is that Womble Bond Dickinson withheld documents in the following categories:(i) internal Womble Bond Dickinson communications,(ii) draft documents and working papers,(iii) accounting records,(iv) internal file management records, and(v) documents “which relate to other clients”. On the face of it, the first four of these categories appear to be documents which, according to the authorities, would belong to the solicitors rather than to their client. There is no basis for supposing that these categories of documents have been mislabelled by Womble Bond Dickinson, a well-known and reputable law firm, and thus none for going behind what they have said in relation to them. In relation to those categories, therefore, I dismiss the complaint.[56]As to the fifth category (documents “which relate to other clients”), this is much less clear. A document on a particular file may relate to more than one client. For example, where a solicitors’ firm acts for both sides in a conveyancing transaction (with informed consent of both clients), an executed conveyance would relate to both clients, but may belong to only one of them. On the other hand, a preliminary draft of such a conveyance may belong to the solicitors themselves. It would have been sensible for the claimant’s solicitors to bottom this out with Womble Bond Dickinson at the time. I consider that the proper course for me now is to direct the claimant to ask Womble Bond Dickinson for more details of what is in the fifth category of documents, and provide the answer to the defendant. She will then be at liberty to restore her application in relation to that fifth category to the court if she considers that Womble Bond Dickinson have retained documents under that category which do not belong to them.

The claimant’s application for a variation of the order of 15 August 2025

[57]In the event that I held that the claimant was in breach of the order of 15 August 2025 (as in fact I have done), it indicated informally that it sought a variation of that order in order to reduce its scope. The court’s power to vary its own order derives from CPR rule 3.1(7), which reads:
“A power of the court under these Rules to make an order includes a power to vary or revoke the order.”
In Allsop v Banner Jones Solicitors [2021] EWCA Civ 7, Marcus Smith J (with whom Lewison and Arnold LJJ agreed) said:
“24. … It is very clear that this provision cannot generally be used to vary or revoke final orders (that is, orders that give rise to a res judicata estoppel) and equally clear that even interlocutory decisions will generally only be varied or revoked where either (a) there has been a material change of circumstance since the original order was made or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated: Tibbles v. SIG plc, [2012] EWCA Civ 518, [2012] 1 WLR 2591.”
[58]It may be that the order of 15 August 2025 was a final rather than an interlocutory order for these purposes (even though it may be classed as interlocutory for others). It decided the question whether specific disclosure should be given by one party to the other. If so, I see no basis for varying the order. But I do not need to decide the point, for, even if it were interlocutory, it was not suggested that there had been either a material change in circumstances since the order was made, or a misstatement of the facts on which the decision had been made. All that has happened is that the claimant has purported to comply with the order, the defendant has complained of a breach, and I have adjudicated on that complaint. Essentially, the claimant now wishes me to revisit the question whether the order should have been made as it was. I do not think I can do that. If the claimant was dissatisfied with the order, the proper course was to appeal it at the time. But it failed to do that. Accordingly, I dismiss the claimant’s application for a variation.

The defendant’s application for an extension of the order of 15 August 2025

[59]The defendant’s formal application by notice dated 20 November 2025 also seeks an extension of the scope of the order of 15 August 2025 to cover documents dated before the period originally specified (May 2013 to December 2014). This is not an application under CPR rule 3.1(7), but instead a fresh application for a new order, with wider scope. In her witness statement, the defendant refers to a sequence of events, including a dispute with an entity called Brown Brothers and Sons in 2012, and a change of name of the claimant company to its present name on 11 February 2013. This led, she says, to the loss of the company’s “mainstream banking facilities” and to its falling “within the purview of the Royal Bank of Scotland’s Business Restructuring Group”.[60]In support of the fresh order’s extension of scope, the defendant says this in her witness statement:
“In light of the RBS intervention, the critical restructuring work, it is clear Bond Dickinson’s involvement in in advising RBS and [the claimant) on these matters, occurred before May 2013. I respectfully request that the disclosure period under paragraph 1 of the Order … dated 15th August 2025, be extended to cover December 2012 to December 2014 inclusive. This will ensure that the Court has access to the full Bond Dickinson file and can properly assess each document’s relevance to the disputed £300,000 director’s loan.”
[61]However, I am afraid that, from the defendant’s witness statement, it is not at all clear why it is necessary to grant a fresh order extending back beyond May 2013. To begin with, the evidence of the defendant is that the events leading to RBS being involved at all happened after 11 February 2013, when the company changed its name. I cannot see any basis for going back to December 2012. Secondly, the evidence does not begin to show what happened between the change of name and May 2013 (which was the commencement date put forward by the defendant herself for the disclosure of the Bond Dickinson client file) to justify a further order. On this basis, I would refuse the application by the defendant for a fresh order extending back beyond May 2013. I am fortified in this conclusion by the defendant’s oral admission at the hearing before me that she did “not really need the extension in time, but it would be nice”.

Conclusion

[62]For the reasons given above, I allow the application of the defendant, to the extent that(i) the claimant must now produce for inspection by the defendant the remainder of the documents supplied to it by Womble Bond Dickinson, without withholding any of them on the grounds of legal professional privilege,(ii) the claimant must ask Womble Bond Dickinson for more details of what was in the fifth category of documents withheld by that firm, and provide the answer to the defendant, whereupon she will be at liberty to restore her application to the court in relation to that category, if so advised. However, I refuse (i) the application of the claimant for a variation of the order of 15 August 2025, and (ii) the application of the defendant for an extension of the scope of that order.