Mortgage Express v Mehrban Michael Singh Sawali [2010] EWHC 3054 (Ch) concerned attempts by Mortgage Express to obtain the entire contents of a solicitor’s files created in relation to the solicitor’s joint retention by Mortgage Express and a number of its borrowers. The court held that although the borrowers had a prima facie right to privilege and confidentiality in relation to their portion of the file, such a right was overturned by the fact that the borrowers had signed a declaration stating that they consented to their solicitor sending the entire transaction file to the lender upon request. Such declarations are common in mortgage application forms. As such, the files were ordered to be disclosed to Mortgage Express.

This case is significant because it will now be easier for mortgage lenders to investigate the whole circumstances of a loan, in order to attempt to show that the borrowers in question committed fraud or that the solicitors in question breached the standard Council of Mortgage Lenders Conditions. Any claim made against solicitors will land on the doorstep of their professional indemnity insurers.