Access to UK Company Privileged Documents by Former Directors

In the High Court’s decision in Serendipity Centre Ltd v. Tinson, [2026] EWHC 349 (Ch), the court held that privilege could not be asserted against a former director over certain documents in circumstances in which she was already lawfully aware of the contents. This decision is a reminder that, as a matter of English law, companies cannot necessarily rely on legal professional privilege to withhold documents from former directors. The critical question is whether a communication is confidential as against the individual whom the company seeks to withhold it from. The case is of interest to directors and companies alike as it explores the circumstances in which a company can (and cannot) assert privilege against a former director.

Background

The claimant company (the Company) was founded by the defendant, Ms. Tinson. Ms. Tinson served as the Company’s sole director, an employee, and the holder of all A shares (with a separate entity holding B shares). 

In October 2019, Ms. Tinson was suspended and subsequently dismissed. However, Ms. Tinson remained the sole holder of the A shares.

In 2020, the Company brought proceedings seeking repayment of sums it said was due under a director’s loan agreement between it and Ms. Tinson.

Subsequently, in 2021, the B shareholder served a compulsory transfer notice on Ms. Tinson alleging that she was a ‘bad leaver’ under the Company’s articles and was therefore obliged to transfer her shares.

Disclosure Dispute

Ms. Tinson was the sole director of the company at the time of the loan agreement, and she instructed the solicitors and received advice from those solicitors for and on behalf of the Company.

In the subsequent dispute between Ms. Tinson and the Company, Ms. Tinson sought and obtained an order from the court requiring the Company to obtain from its former solicitors the full client file (inclusive of attendance notes and emails) relating to the loan agreement, disclose it to her, and identify any documents that had been withheld on the grounds of legal professional privilege.

Ms. Tinson challenged the Company’s compliance with the order for disclosure, alleging that the Company had failed to disclose the full file, had applied a relevancy filter that was not provided for under the order, and had misapplied the exception for privilege.

Privilege Analysis

The central issue for the High Court was whether the Company could properly assert legal professional privilege against Ms. Tinson in respect of the solicitors’ client file (the High Court having agreed with Ms. Tinson that the terms of the order did not permit the Company to apply a relevancy filter). 

The High Court considered whether the documents in question were confidential as against Ms. Tinson. As previously noted, Ms. Tinson had been the Company’s sole director at the relevant time, and she had instructed the solicitors and received their advice directly. Although Ms. Tinson obtained that advice for the benefit of the Company and could not make use of it for her own private purposes, she was fully aware of its contents.

The court held that 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. Accordingly, while the advice was confidential as against third parties, it was not confidential as against Ms. Tinson. The Company could not, therefore, establish the necessary confidentiality to support a claim to privilege against her. 

The Company also sought to argue that the documents “belonged” to the Company and that privilege was therefore its to assert. The High Court rejected this as misconceived. Ms. Tinson was not asserting a proprietary right in the documents. Rather, she was resisting an attempt to withhold documents from her. 

Notwithstanding its decision that there was no confidentiality in the solicitor file vis-à-vis Ms. Tinson and, therefore, no ability to sustain a claim of legal advice privilege, the High Court also considered whether Ms. Tinson’s position as a shareholder had any bearing on the analysis regarding if the documents had been confidential. Applying Jardine Strategic Ltd v. Oasis Investments II Master Fund Ltd (No 2), [2025] AC 1558, it confirmed that shareholders are not entitled, by that status alone, to access a company’s privileged material. Accordingly, Ms. Tinson’s position as a shareholder did not assist her. 

Practical Takeaways

• Privilege may not prevent a former director from obtaining disclosure of a company’s privileged material. Under English law, a company cannot sustain a claim to legal professional privilege against a former director over documents if, and to the extent that, the former director is already lawfully aware of the contents. When the former director was directly involved in seeking and receiving the advice, it is difficult to maintain that the materials remain confidential to the company. However, as noted in the judgment, if the former director only had a right of access to such documents during their tenure as a director but never, in fact, saw them, the position may be different.
• Document management and instruction practices. The sharing of legal advice within a company will lead to a loss of confidentiality as against the persons whom it is shared with. Accordingly, it is critical to manage privileged material carefully, with sharing on a “need-to-know” and documented basis.
• Early case strategy is critical in director disputes. When a dispute with a current or former director is anticipated, the company should undertake an early assessment to identify the extent of any company legal advice that may have been shared with the director, so the company may understand how this may impact the dispute.
• Shareholder status alone will not defeat privilege. Shareholders are not automatically entitled to access a company’s privileged material. Read more on this topic: “‘Shareholder Rule’ Snuffed Out: Practical Implications for UK Companies and Shareholders” (August 2025).

This informational piece, which may be considered advertising under the ethical rules of certain jurisdictions, is provided on the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin or its lawyers. Prior results do not guarantee similar outcomes.