Ball v Druces & Attlee (A Firm)

A former client seeking to restrain solicitors from acting against him must establish that the solicitors possess confidential information and that it is, or may be, relevant to the new matter. The burden remains on the applicant, but it may be discharged by inference from the circumstances. A close identity or substantial overlap between the former and new retainers may justify the inference. The information need not be identified in detail where doing so could waive or destroy its confidentiality. Once a real, more than fanciful risk of misuse is shown, the solicitors must demonstrate that no relevant confidential information is held or that effective safeguards, such as a Chinese wall, prevent misuse.

Druces & Attlee acted for the Eden Project and the Eden Trust in Chancery proceedings brought by Ball. Ball separately claimed damages in the Queen’s Bench Division, alleging that the firm had negligently advised him during an earlier period when it had acted for him and Tim Smit in relation to the Project.

Ball applied to restrain the firm from continuing to act in the Chancery proceedings, alleging that it possessed confidential information concerning him which was relevant to those proceedings. Burton J granted the injunction on an interlocutory basis. The firm sought permission to appeal, raising issues concerning the burden of proof, the identification of confidential information, delay, joint retainers and waiver of privilege.

1. Application dismissed. Permission to appeal was refused. There was no real prospect of successfully challenging Burton J’s injunction. The order was made without an order for costs.
2. The court applied the principles in Bolkiah v KPMG [1999] 2 AC 222. The claimant had to show, first, that the solicitors possessed confidential information concerning him and, secondly, that the information was or might be relevant to the new matter in which the interests of the new client might be adverse to his own.
3. The burden remained on Ball. It was nevertheless capable of being discharged by inference. The close relationship between the earlier personal retainer and the Chancery proceedings, together with the firm’s eventual admission that it had acted for Ball personally, provided a sufficient basis for inferring possession of relevant confidential information.
4. Ball was not required to identify the information with greater specificity. Detailed disclosure of the feared confidential material might waive or destroy the very confidentiality relied upon. The possible contents of attendance notes, including information concerning the parties’ respective contributions and settlement positions, were sufficient to support the judge’s conclusion.
5. The firm had neither shown that it held no relevant confidential information nor established a Chinese wall or equivalent safeguard. Its earlier denial of the retainer also left it unable to demonstrate that it had made an effective early assessment of the risk. Delay did not remove the possibility that unused confidential material remained on the files.
6. Any joint character of the earlier retainer did not assist the firm, because Smit was not a defendant in the Chancery proceedings and was not legally or factually equivalent to the Chancery defendants. Automatic waiver of privilege in litigation between solicitor and client had no application to the parallel proceedings concerned here, which did not determine the incidents of the solicitor-client relationship.

• Court of Appeal (Civil Division): Burton J’s interlocutory injunction was upheld in substance. The application for permission to appeal was dismissed.
• Queen’s Bench Division: Burton J granted Ball an injunction restraining Druces & Attlee from continuing to act for the Eden Project and the Eden Trust in the related Chancery proceedings.