piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Are counsel’s doodles privileged?

    Do you doodle in meetings? Should you doodle in meetings?   There is both good news and bad.       The good news is that doodling may be good for you! A study by the University of Plymouth and published in Applied Cognitive Psychology suggests that doodling actually helps improve concentration and memory. Two groups of people were asked to listen to a boring telephone conversation. One group was doodling, the other was not. The doodlers remembered 29 per cent more information than those who had simply sat and listened.   The bad news at least so far as counsel is concerned is that any doodles may now have a wider audience than the doodler may have intended. In Hellard and another v Irwin Mitchell [2012] All ER (D) 71; [2012] EWHC 2656 (Ch) His Honour Judge Purle Q.C. sitting as a judge of the Chancery Division heard an application in a claim for alleged professional negligence against the defendant firm of solicitors.       The essential issue was limitation and, in particular, whether it was reasonable for the solicitors to rely on the advice of counsel and what counsel's advice had been. The solicitors applied for a declaration that the claimant trustee in bankruptcy had impliedly waived the obligations of the bankrupt’s former counsel to uphold legal professional privilege in respect of the subject matter of the claim.       It was common ground that the bringing of the claim had operated as a waiver of privilege with regard to the solicitors’ file including the solicitors’ notes of conferences with counsel and the deliberations of the solicitor including deliberations with counsel. The issue was whether privilege still attached to counsel’s own papers such as working papers and notes of conferences because counsel had not been joined in the claim.       The court held that privilege attached to confidential communications between the solicitors, counsel and their mutual client. Once privilege regarding those communications had been waived, any evidence as to those communications could be adduced - see [9], [12], [15] of the judgment.       Thus having waived privilege in relation to counsel's advice, the claimant could not pick and choose which bits of counsel's advice or deliberations could be withheld from the court. The waiver would therefore extend to all of counsel’s own working papers, deliberations and notes including, presumably, any doodles!       Despite the results of the Plymouth study, it seems that doodling does not always help with concentration and memory. One individual is quoted as saying:   “I always doodle, and I don't pay attention … It kind of hurts my memory”.   

Bankrupt claimant – bankrupt claim?

What happens where a personal injury claimant is made bankrupt part way through the case, or where a bankrupt wishes to bring a claim for personal injury?   Under Section 306 of the Insolvency Act, the bankrupt’s estate vests in his trustee. This includes “property”, which includes things in action. This would cover a personal injury claim, unless the only damages being claimed are general damages: these are and remain personal to the bankrupt and are an exception to the vesting rule (see Heath v Tang [1993] 1 WLR 1421, 1423). Any personal injuries claim including a claim for special damages vests in the trustee in bankruptcy. The trustee is entitled to retain the special damages ultimately recovered (including damages for past and future loss of earnings), but will hold the general damages on constructive trust for the claimant (see Ord v Upton [2000] Ch 352 at 369-70).   Of course, this position gives rise to practical difficulties. The Court of Appeal in Ord optimistically took the view that these were nothing the law could not deal with. Where a bankrupt claimant wishes to pursue a personal injuries claim including special damages the Court of Appeal made clear that the trustee in bankruptcy “would have to consider carefully his duty to the bankrupt and would probably, if requested, assign the cause of action to him”.