‘The distinction that is drawn is between the privilege relating to the bankrupt’s property divisible amongst his or her creditors, on the one hand, and to property not so divisible, or matters personal to the bankrupt on the other.‘Peter Gibson J in Re Konigsberg  1 WLR 1257
The extent to which the Insolvency Act 1986 entitles a trustee in bankruptcy to obtain documents from a bankrupt’s former solicitor is not strictly black and white.
Ss.311 and 312(3) of the Insolvency Act 1986 mean that the former solicitor is obliged to hand over “any property to the account of, or for, the benefit of the Bankrupt” and “to pay or deliver to the trustee all property in his possession or under his control which forms part of the bankrupt’s estate”. This includes “all books, papers and other records which relate to the bankrupt’s estate or affairs and which belong to him”.
The solicitor is obliged to hand over all papers on its file(s) that belong to the bankrupt, but not those that belong to the solicitor. This applies even to privileged communications (i.e. matters that were ostensibly, until bankruptcy, protected by legal professional privilege).
The trustee in bankruptcy steps into the shoes of the bankrupt’s solicitor, thus overriding any claim to withhold property (papers) which relate to the bankrupt’s estate on the grounds of privilege.
But, what is ‘property’ for this purpose? The use of the term at various places in the Act is inconsistent.
S.436 of the Act defines the term very widely to include ‘money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest…arising out of, or incidental to, property’.
However, s.311(1) treats ‘books, papers and other records‘ as something separate from other things forming part of the bankrupt’s estate, and so does s.312(2) which refers to ‘any property, books, papers or other records’. It seems likely, however, that a court would regard ‘property‘ as including ‘books, papers and records‘ for the purposes of s.312(3).
The safest view seems to be that the bankrupt is entitled to the whole of the file, apart from any papers which the solicitor has brought into being for his or her own use and for which he or she has not charged the client (i.e. internal memoranda or draft documents/advice).
So, how far is the privilege override intended to extend as to communications which would otherwise be privileged from disclosure? The answer is a distinction must be drawn between communications containing information about the bankrupt’s affairs, which the trustee needs in order to carry out his or her functions properly, and communications containing information which is not essential to the trustee as the bankrupt continues to be entitled to privacy for legal advice on matters which are not by any reasonable standard the concern of the trustee.
In summary, whilst the trustee in bankruptcy steps into the shoes of the bankrupt’s solicitor, thus overriding any claim to withhold property (papers) which relate to the bankrupt’s estate on the grounds of privilege, the trustee in bankruptcy would be entitled to the whole of the file, but for:
- any papers which the bankrupt’s former solicitor brought into being for their own use and for which they have not charged the client (i.e. internal memoranda and emails and/or documents which have been exchanged internally for the purposes of editing/amending before ultimately being sent to the client as legal advice);
- any property which is not essential to the trustee/bankruptcy (i.e. the bankrupt’s other affairs). The guidance suggests that the words ‘relate to the bankrupt’s estate’ (s.311(1)) should be interpreted narrowly, however s.436 of the Insolvency Act 1986 defines ‘Property’ as ‘… money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property’; and
- any papers which the Bankrupt does not authorise his former solicitor to disclose. However, this may ultimately lead to an application on behalf of the trustee in bankruptcy under s.366 of the Insolvency Act 1986 in which the former solicitor would take a neutral stance and where the bankrupt would, one presumes, adopt a hostile stance to the trustees’ request at their own expense and by using another firm of solicitors).
Therefore, as far as a bankrupt’s former solicitor is able to filet files safely without risk of committing any breach, only papers which fall into 1 above or, if you can safely say do ‘not arise out of or are incidental to the bankrupt’s estate’, 2 above.
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