Marsh v Sofaer & Anor

A solicitor’s duty of confidence covers both information supplied by the client and conclusions drawn from that information. A solicitor instructed under one retainer cannot, without the client’s consent, communicate confidential information or opinions to another solicitor acting for the same client under a different retainer. A client’s possible lack of mental capacity does not itself authorise disclosure. It may justify an application to the Court of Protection, but it does not create a wider exception to confidentiality. A claim based on an alleged duty to make such disclosure therefore discloses no reasonable grounds where no recognised relaxation of confidence is pleaded.

The claimant brought proceedings against the defendants, solicitors who had advised her concerning the estate and business affairs of Ben Goder. She alleged that they should have recognised her limited intellectual capacity and informed the solicitors who later defended her in criminal proceedings. She claimed that, had that information been disclosed, she might not have been tried or imprisoned.

The defendants applied under Rules 3.4(2)(a) and (b) and 24.2(a)(i) to strike out or obtain summary judgment on the personal-injury aspect of the claim. The central issue was whether the defendants owed a legal duty to disclose their views about the claimant’s capacity to solicitors acting under a separate criminal-defence retainer.

1. Application granted. The paragraphs alleging personal injury caused by failure to inform the criminal-defence solicitors were struck out because the alleged duty did not exist in law.
2. Communications made by a client to a solicitor pursuant to a retainer are confidential. The solicitor’s conclusions about the client’s veracity, the merits of the case, or other matters derived from those communications are confidential to the same extent.
3. The fact that two solicitors act for the same client in different matters does not, without the client’s knowledge and approval, authorise one solicitor to disclose confidential information or opinions to the other. The separate retainers and different purposes of the instructions reinforced that conclusion.
4. Confidentiality may be relaxed expressly or by implication from the client’s conduct. No conduct capable of implying consent was alleged. The claimant’s possible lack of capacity could justify an application to the Court of Protection, but could not itself authorise a further disclosure to unauthorised persons. Indeed, if incapacity were proved, it would undermine reliance on implied consent.
5. The court noted the summary-judgment test under Rule 24.2(a)(i), including the requirement of no real prospect of success. It did not decide the alternative argument that the claim constituted a collateral attack on the criminal conviction. The claim was disposed of on the absence of any duty to disclose.

This was a first-instance application in the High Court (Chancery Division). No appellate decision is stated in the judgment.