PROPERTY CHAMBER
FIRST –TIER TRIBUNAL 
LAND REGISTRATION DIVISION

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

LAND REGISTRATION ACT 2002
REF NO 2013/0886/7

BETWEEN

ABDUL WAHEED SHEIKH
Applicant
and

SHAFIRA BEGUM MALIK

Respondent
Property address: 9 and 35 King Street, Southall, UB2 4DG

Judge Ann McAllister

ORDER

1. The application dated 9 June 2014 to appoint a single joint expert in the field of psychiatry to assess the Respondent is refused.
2. The application dated 20 May 2014 to exclude the evidence of Richard Caplan is refused.
3. The Respondent is to pay the costs of and occasioned by the applications. 

REASONS

1. The issue in this case, in essence, is whether the Respondent, Mrs Malik, can make good a plea of non est factum in relation to two transfers dated 8 February 2004 whereby she transferred 9 and 35 King Street from her sole name to the joint name of herself and the Applicant. The claim is not made on the basis of mental incapacity.
 
2. The case has been set down since 12 May 2014 for hearing on 25  to 27 June 2014. I dealt with an application for security for costs and other matter at a hearing on 23 May 2014.

3. Two matters remain outstanding. The first relates to an application to adduce medical evidence concerning Mrs Malik. No evidence was available before me on 23 May 2014.

4. 0n 30 May 2014 Mrs Malik’s solicitors filed and served a letter from her GP, Dr Alzarrad. This sets out the number of visits made to his surgery by Mrs Malik since 30 July 2010, and summarises the various conditions she suffers from and is receiving medication for. It is of note that none of the conditions relate to dementia.

5. By letter dated 9 June 2014 Mrs Malik’s solicitors sent the Tribunal a document headed Independent Medical Report. This is a report prepared by Dr Sood (not signed or dated) following an examination of Mrs Malik on 3 June 2014. Dr Sood is not a specialist in dementia or the care of the elderly. He is a medical member of the Tribunal panel for Employment Support and Disability Allowance. Mrs Malik’s medical notes were not available to him when he examined her. He asserts, without further elucidation, that Mrs Malik is a known sufferer from dementia since 2012. He records that Mrs Malik is depressed and suffers from low self esteem with some memory loss. His recommendation is that she receive counselling.

6. On the basis of this report, her solicitors now ask that a joint expert be appointed, possibly a consultant psychiatrist. The covering letter suggests this can be done in time for the hearing to start on 25 June 2014.

7. The Applicant’s solicitors objected on 10 June 2014. They make the point that there is no indication, in her GP’s notes, that she suffers from dementia, and that, relevantly, no reference to any such condition is made in the Statement of Case or witness statement. It is also pointed out that, realistically, there is no prospect of such an expert being appointed and reporting in time for the hearing.

8. I agree with the various points made on behalf of the Applicant. It would, in my judgment, having regard to the over-riding objective, and to the way in which this case has been presented on behalf of the Applicant, be wrong to allow such evidence at this stage. There is in any event no basis for this application, other than Dr Sood’s unparticularised assertion that she suffers from dementia. The case would, inevitably, have to be adjourned. 

9.  As I say, Mrs Malik’s mental health has never been put in issue prior to now. She is elderly, and clearly suffers from a number of conditions. These factors will no doubt be relied on and, if appropriate, taken into account by the trial Judge in assessing whether she can establish her plea of non est factum. 

10. The second issue, raised on 20 May 2014, relates to the evidence of Richard Caplan, a former solicitor, who acted for Mrs Malik in relation to the disputed transfers. It is part of her case that she was unaware of and did not understand the contents or effect of the transfers, and it is expressly denied that she received any advice or clarification thereon before signing. Mr Caplan’s evidence also deals more broadly with various transactions between the Applicant and Mrs Malik’s sons, and the difficulties encountered in trying to register the transactions.

11. Mrs Malik’s case is that any advice given to her (or, indeed, not given to her) by Mr Caplan is covered by legal professional privilege. Mr Caplan is not being sued by Mrs Malik, and, accordingly, unless and until she expressly waives privilege in these proceedings, his evidence should be excluded in its entirety.

12. Legal professional privilege is jealously guarded by the courts, even where, in a broad sense, some unfairness may occur. But there is no doubt that, in some situations, the client will be taken to have waived that privilege. The obvious case is where a client brings a claim against a solicitor: see Paragon Finance v Freshfield [1999] 1 W.L.R at 1188 where Lord Bingham stated that ‘ a party cannot deliberately subject a relationship to public scrutiny and at the same time seek to protect its confidentiality. He cannot pick and choose, disclosing such incidents of the relationship as strengthen his claim and concealing from forensic scrutiny such incidents as weaken it.’

13. The question is whether, and in what circumstances, a client will be taken to have impliedly waived privilege where, as here, a party relies on a particular allegation which puts in issue the legal advice given, but where the solicitor is not a party.  In Digicel Ltd v Cable & Wireless Plc [2009] EWHC 1473 (Ch), Morgan J raised what he described as the ‘possibility of waiver by reason of deployment of the contents of legal advice in the litigation’ In that case it was common ground that where a party is entitled to claim legal professional privilege but nonetheless deploys some of the privileged material in the litigation, then that party is taken to or might be taken to have waived other privileged material. The test is an objective one. 

14. The point was considered further in Mac Hotels Limited v Rider Levett Bucknall Uk Ltd [2010] EWHC 767. The test formulated by HHJ Havelock-Allan QC is whether privileged material has been deployed in a manner which indicates that the privilege has been abandoned. Deployment, he stated, involves two elements: first, a clear reference to the existence of the privileged documentation (or, I might add, material); second, reliance on the content of that material for the purpose of making a particular point. The key test is whether the contents of the material are being made use of, rather than its effect. 

15. In this case, the Applicant submits that Mrs Malik is clearly deploying the contents of the advice received by Mr Caplan as part of her case that she did not receive any adequate legal advice which would allow her to understand the true nature of the documents she signed. It is her case that she could not understand the documents without proper and full explanation being given to her. She disputes the fact that advice was given to her. It follows, therefore, that she has chosen to deploy the content of the advice (or, the lack of it) in these proceedings. In simple terms she cannot both seek to rely on her own evidence as to the absence of any proper advice whilst at the same time denying the Applicant the opportunity of disproving that assertion.

16. I agree with these submissions. Mrs Malik has chosen to deploy the contents of the advice she received in these proceedings. It seems to me that the Applicant is entitled to call Mr Caplan to deal with these allegations. His evidence, will of course, be tested in cross examination.

17. It seems to me right that Mrs Malik should pay the costs of and occasioned by these applications. The amount can be assessed at the conclusion of the trial.

BY ORDER OF THE TRIBUNAL

Dated this 18th June 2014