Eastgate v Walker-Prentice - [2021] NZHC 2438

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000283

[2021] NZHC 2438

BETWEEN
PETER CHRISTOPHER EASTGATE

Applicant

AND

SHARON BEULAH WALKER-PRENTICE

First Respondent

LOIS REBECCA BECKWITH
Second Respondent

WARREN REGINALD WALKER

Third Respondent

Hearing: 13 - 15 September 2021

Appearances:

J V Ormsby and B A Harkerss for Applicant G M Brodie for First Respondent

K W Clay, S J Jamieson for Second and Third Respondents

Judgment:

15 September 2021

Issued:
Reissued:

16 September 2021

17 September 2021

JUDGMENT OF GENDALL J

On Litigation Privilege

NOTE: I issue a corrected form of the judgment containing amendments to paragraph
[13] pursuant to the slip rule (Rule 11.9).

EASTGATE v WALKER-PRENTICE [2021] NZHC 2438 [15 September 2021]

[1] Shortly after the commencement of the hearing in this matter I addressed a challenge to the litigation privilege claimed by the applicant (Mr Eastgate) here. That challenge was made on behalf of the first respondent (Sharon) and advanced by her counsel, Mr Brodie.

[2] In doing so, I heard submissions from Mr Ormsby, counsel for Mr Eastgate, and from Mr Brodie, counsel for Sharon, and gave my oral decision then. That decision dismissed Sharon’s challenge to the litigation privilege claimed by Mr Eastgate and upheld that privilege. In giving that decision I indicated that my reasons for the decision would follow. I now give those reasons.

[3] Mr Eastgate brought the present application seeking a grant of probate in solemn form as the named surviving executor in the will of the late Zelda Rose (the deceased) signed by her in 2012. A later will in 2014 is challenged it seems on grounds of lack of testamentary capacity on the part of the deceased and a claim to undue influence.

[4]Background to the litigation privilege claim seems to be as follows:

(a)Mr Brodie, for Sharon, first asked to see Mr Eastgate’s litigation file by way of discovery on 31 January 2020. Counsel for Mr Eastgate responded at that time, confirming that access was available to all files other than Mr Eastgate’s own litigation file.

(b)On 2 September 2020 it seems Mr Brodie again insisted on inspecting Mr Eastgate’s litigation file. Again, counsel declined to waive privilege in respect of that litigation file.

(c)At a pre-trial conference in this matter, Nation J noted in a minute dated 5 August 2021:

(i)As recorded in an earlier 9 October 2020 minute of this Court, discovery in this matter was to proceed informally.

(ii)The minute further recorded that Mr Brodie had indicated there might be an issue over the discoverability of Mr Eastgate’s solicitor file associated with commencement of discovery. It further recorded that counsel opposed such discovery, on the basis of a litigation privilege claim.

(iii)The Court in the minute further recorded that counsel confirmed to the Court that:

a.Mr Eastgate had no contact or communication with Zelda or any of her children at the time she executed relevant wills; and

b.Mr Eastgate had no contact with any of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Eastgate v Walker-Prentice

Details

AGLC: Eastgate v Walker-Prentice [2021] NZHC 2438
Case: [2021] NZHC 2438
Decision Date: 15 September 2021

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether Mr. Eastgate, an executor of a will, could claim litigation privilege over his legal advice file in a case brought by Ms. Walker-Prentice and others. The case centred around a dispute over the validity of two wills, one from 2012 and the other from 2014, with the 2012 will being challenged on grounds of lack of testamentary capacity and undue influence. The court had to determine whether Mr. Eastgate's litigation file, which contained legal advice from his solicitor, was subject to litigation privilege. Litigation privilege is a legal principle that protects confidential communications between a lawyer and their client, intended for use in legal proceedings. The respondents argued that a joint interest exception to legal professional privilege applied, as the interests of the executor and beneficiaries were aligned in determining the validity of the will. However, the court found that the positions and interests of the parties were not sufficiently aligned to warrant a joint interest exception, and the litigation privilege claim was upheld. The court found that Mr. Eastgate, as an independent executor, had an obligation to gather information and seek legal advice independently in making his decision about the validity of the 2014 will, and that he should be entitled to retain privilege over his litigation file.

The court based its decision on the longstanding principle that trustees enjoy litigation privilege in respect of files relating to general legal advice they have acquired. The court cited several authorities, including Burgess v Monk, Re Harper, and Lambie Trustee Ltd v Addleman, which support the principle that trustees are entitled to assert privilege in the usual way when being sued by beneficiaries. The court also noted that the Supreme Court in Lambie Trustee Ltd v Addleman had rejected the suggestion that a joint interest exception applied simply because litigation was not "hostile". The court found that in the present case, the parties' positions and interests were not sufficiently aligned to warrant a joint interest exception, as the respondents were beneficiaries under the 2014 will and had an interest in challenging its validity. The court concluded that Mr. Eastgate had sought to assist all the parties on all matters that might seem to be relevant, and that he had disclosed from whom he sought information and the facts ascertained before making his decision to bring the application for solemn probate of the 2012 will. Therefore, the court dismissed the challenge to the litigation privilege claim and upheld the privilege.

Orders