O'Rourke v. Darbishire and Others

Factual and Procedural Background

The dispute concerns the estate of The Testator, who died in 1887 leaving assets said to exceed £1,000,000. The estate was administered by three executors—two lay persons and one solicitor (Defendant)—under a will and four codicils that, on their face, conferred the residue upon the executors absolutely.

The Plaintiff, as legal personal representative of the heiress-at-law and one of the next-of-kin, commenced proceedings in 1915 alleging either (a) the existence of an undefined or invalid secret trust that resulted in a trust for the heir and next-of-kin, or (b) that the executors procured the gifts by fraud so as to appropriate the residue for themselves. In 1889 a deed of release had been executed by the heir and next-of-kin in favour of the executors; the Plaintiff seeks to set that deed aside.

Discovery skirmishes followed. Judge Peterson initially ordered production of certain documents (3 July 1918). The Court of Appeal (Bankes, Warrington and Scrutton LJJ) reversed that order on grounds of professional privilege ([1919] 1 Ch 320). The present appeal was taken to the House of Lords, where multiple Law Lords delivered reasoned opinions.

Legal Issues Presented

1. Whether communications between a solicitor who is also a trustee/executor and his co-trustees are protected by legal professional privilege.
2. Whether an allegation of fraud, without more, defeats that privilege.
3. Whether a beneficiary “proprietary right” to trust documents arises before the Plaintiff establishes that he is in fact a cestui que trust.
4. Whether the class of documents immune from production because they relate solely to the resisting party’s own case is confined to documents that could be adduced in evidence.
5. Whether an order made by a judge who inspected documents by consent operates as an un-appealable arbitral decision.

Arguments of the Parties

Plaintiff's Arguments

• The solicitor-executor cannot claim privilege against beneficiaries; his dual role removes confidentiality (point (a)).
• As representative of the heir and next-of-kin, the Plaintiff enjoys a proprietary right to inspect all trust documents (point (b)).
• No privilege attaches where communications further a fraud, and the pleadings sufficiently allege such fraud (point (c)).
• The exemption for documents relating “solely” to the opponent’s case must be limited to documents admissible in evidence.

Defendants' Arguments

• Professional privilege protects all confidential solicitor-client communications, notwithstanding that the solicitor is also a trustee.
• The Plaintiff has not yet established any cestui que trust status; until then no proprietary right exists.
• Fraud is merely alleged; no prima facie evidence displaces privilege.
• The “solely relates” doctrine is not confined to evidentiary documents; it covers any material revealing litigation strategy.
• The judge’s inspection of the two opinions (item 434) occurred pursuant to both parties’ invitation; his resulting direction was arbitral and therefore not appealable.

Table of Precedents Cited

Court's Reasoning and Analysis

Professional privilege and dual roles. The House held that the rationale for privilege is to ensure full disclosure to legal advisers; it is unaffected by the adviser’s status as trustee. Allowing privilege to be lost in these circumstances would unfairly limit litigants’ freedom to choose their solicitor.

Proprietary right argument. The Plaintiff’s alleged status as beneficiary is precisely the issue for trial. Because the 1889 release remains in force and no prima facie invalidity has been shown, the Plaintiff cannot yet invoke beneficiary rights to documents.

Fraud exception. While privilege does not shield communications made to advance fraud, mere pleading language is insufficient. A “clear and definite” allegation supported by prima facie evidence is required. The Court found none.

“Solely relates” privilege. Citing Wigram and nineteenth-century authority, the House rejected the contention that only documents admissible in evidence are protected. The test is whether the documents exclusively reveal the resisting party’s own case or evidence, not their admissibility.

Item 434 and competency of appeal. The Law Lords separately analysed two counsel opinions inspected by Judge Peterson. Because both parties had invited the judge to decide production after private inspection, his direction was arbitral and, save for a narrow disagreement by Judge Finlay, not open to appeal.

Holding and Implications

HOLDING: Appeal dismissed with costs. (A narrow dissent by Judge Finlay concerned one item, but did not alter the outcome.)

Implications: The judgment reaffirms three principles: (1) solicitor-client privilege survives where the solicitor is also a trustee; (2) allegations of fraud must be supported by prima facie evidence to pierce privilege; and (3) the “solely relates” exemption is not confined to documents admissible as evidence. The ruling leaves intact customary discovery practice and signals that appellate review may be unavailable where trial judges inspect documents by consent.