Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H to establish that some confidential material had been given by him in the course of any meeting. He chose to continue the protection of privilege in respect of some elements, as was his right, but had failed to estabish his case. On the balance of probabilities, no meeting had taken place at which confidential material had been diclosed. H’s application failed.
Williams J summarised the applicable principles: ‘(a) the duties arising in confidentiality and legal professional privilege arise whether the information is imparted to a solicitor directly by a principal, or by an agent on behalf of his principal. It would therefore apply to any confidential information or legally privileged material which arose between Raymond Tooth and OE.
(b) the duty arises whether the parties formally entered into a legal relationship or not. The imparting of information in contemplation of such a relationship would suffice. Thus a preliminary meeting between solicitor and client in the course of a beauty parade could suffice, probably even if pro bono or not charged for.
(c) the rules apply in family cases just as much as in civil actions. There is no absolute rule though that a solicitor cannot act in litigation against a former client.
(d) in the first instance it is a matter for the solicitor involved to consider whether, consistent with his professional conduct rules and the proper administration of justice, he can continue to act. If he concludes he cannot, that will usually be the end of the matter. If he concludes he can continue to act then the Court retains the power to grant an injunction to prevent him from acting.
(e) where a former client has imparted information in confidence in the course of a fiduciary relationship, and /or where that information is privileged, there are strong public policy reasons rooted in the proper administration of justice which support the approach that a solicitor in possession of such information should not act in a way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.
(f) it must be established that the confidential or privileged information is relevant or may be relevant to the matter on which the solicitor is now instructed by the person with an adverse interest to that of the former client.
(g) where it is established that a solicitor is in possession of such confidential and/or privileged information, the Court should intervene to prevent the information coming into the hands of anyone with an adverse interest, unless there is no real risk of disclosure. Once it is established that a person is in possession of such information the burden is on them to show that there is no such real risk. In this context ‘real’ means it is not merely fanciful or theoretical, but it does not need to be substantial.
(h) the risk of disclosure may arise from deliberate act, inadvertent disclosure or unconscious influence or subconscious influence. In the latter case in particular it might be quite fact specific whether that risk arises or not.
(i) in the context of family litigation it is hard to conceive of a situation where the risk of disclosure would not satisfy that test where the Court had concluded that detailed, confidential financial information and/or privileged information had been disclosed to a solicitor by one party to a marriage which was, or might be relevant to a potential dispute between them. In most cases that would create a real risk where that solicitor was subsequently instructed by the other party.
(j) a party advancing such an application may decline to waive privilege or confidentiality, or may elect to partially waive privilege. If he partially waives privilege the Court may order full disclosure in relation to that transaction in order to determine an issue such as an application for an injunction like this, and the Court may take steps to ensure that the privilege is not waived for all purposes, but to ensure that the cat can be put back into the bag. In cases such as this the question should be considered at the directions stage, in particular where, as here, partial disclosure in the form of the attendance note has been made.
(k) if the principles on which an order can be made are established an order should usually be made, unless it is established that there are other more significant public policy reasons for not granting it, including that the Court concludes that the injustice to the respondent in granting the order outweighs the injustice to the applicant in not granting it. Relevant considerations might include, firstly, whether the information had been imparted during an exercise designed either wholly or in part to conflict out other solicitors who the respondent might seek to instruct; whether there are other firms who might now be able to act for the respondent; whether the application was made promptly; the additional expense and delay that might be occasioned to the respondent if they were obliged to instruct new solicitors; whether any such expense could appropriately be off-set by the applicant.’
 EWHC 2660 (Fam)
England and Wales
Cited – Minter v Priest CA 1929
An issue was whether conversations between a solicitor and his client relating to the business of obtaining a loan for the deposit on the purchase of real estate were privileged from disclosure.
Held: They were privileged. The were within to . .
Cited – Minter v Priest HL 1930
The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
Cited – Francis Day and Hunter Ltd v Bron CA 1963
The test of substantial similarity in copyright infringement cases is an objective one. That assessment is for the court with such assistance from the evidence and parties as it can muster. To be an infringement there must be ‘some causal . .
Cited – Great Atlantic Insurance v Home Insurance CA 1981
The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
Held: The entirety of the document was privileged, but by disclosing part, the . .
Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – Davies v Davies CA 2000
The wife had objected to the instruction by her former husband of a solicitor who had been instructed by her some seven years previously. She withdrew her objection, but the court now considered an appeal as regards costs.
Held: The court . .
Cited – Re T v A, (children, risk of disclosure) 2000
Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
Cited – West London Pipeline and Storage Ltd and Another v Total UK Ltd and others Comc 22-Jul-2008
The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An . .
Cited – Re Z (restraining solicitors from acting) FD 21-Dec-2009
Application by a husband, the respondent in the wife’s divorce proceedings, by which he seeks an order that the wife’s solicitors be debarred from acting any further for her in the divorce or financial matters and that they do remove themselves from . .
Cited – G v G FD 24-Apr-2015
(financial remedies, privilege, confidentiality) W wished to re-open finacial remedy prodeedings embodied in a court consent order. She wished to allege non-disclosure by H of two substantial family trusts. He said that she had known of what she . .
Lists of cited by and citing cases may be incomplete.
Family, Legal Professions
Updated: 10 November 2021; Ref: scu.599578