Mortgage Express v Sawali

In November 2010, our client, Mortgage Express successfully argued in the High Court in Birmingham that solicitors, acting for both lenders and borrowers, were obliged to hand over their clients’ ‘entire’ conveyancing files to lenders where the borrower had signed a clause within the contract agreeing to ‘…irrevocably authorise my / our conveyancer to send their entire file relating to the whole transaction (not just the loan) to you at your request’.

The respondent argued that the declarations given by the borrowers did not override the borrowers’ right to privilege and confidentiality. He argued that express consent would need to be sought from each borrower at the time Mortgage Express sought the files. Mortgage Express’ position was that such consent was unnecessary as the borrower had already irrevocably consented to disclosure of the full file.

The judge agreed with Mortgage Express’ position, deciding that, by dint of signing the declaration, the borrowers had indeed given express permission for the files to be disclosed to Mortgage Express. Mortgage Express was therefore entitled to all documents in relation to the purchases of the properties, including copies of correspondence between the borrowers and the solicitor concerned.

A distinction was drawn for cases where part of the solicitors file related to monies borrowed from a different lender. The judge concluded that the “whole transaction” did not include documents relating to another lender, even when that mortgage had completed on the same day as Mortgage Express’ own loan.

In his decision on costs, the judge did not order the respondent to pay costs as he agreed that they had a duty to raise the issue of privilege before the court. But from now on, because of the outcome of this case, future cases where solicitors seek to withhold documents on the same basis are likely to result in an adverse costs order.