Albion Plc v Walker Morris (A Firm)

A solicitor is not automatically barred from acting against a former client. An injunction requires proof that the solicitor is or may be in possession of confidential or privileged information which may be relevant to the action, together with a risk of disclosure to the new client causing detriment to the former client. The information need not be contained in identified documents. The age of earlier matters is not, by itself, decisive. Courts should adopt a robust approach so that merely fanciful or theoretical risks do not justify restraint. That approach does not permit an appellate court to interfere with a properly directed first-instance evaluation where the requirements for an injunction are made out.

Albion Plc obtained an injunction from HHJ Kaye QC in the Leeds District Registry Mercantile Court. The injunction restrained solicitors who had previously acted for Albion from acting for Walker Morris’s clients in Albion’s action and from disclosing confidential or privileged information.

The solicitors had acted for Albion in earlier retention-of-title disputes and had provided advice about Albion’s contractual documentation and ordering procedures. Walker Morris sought permission to appeal, arguing that the present dispute was a narrow battle-of-the-forms issue and that any relevant information was public or insufficiently identified. The central issue was whether the judge had properly applied the requirements for restraining solicitors from acting against a former client.

Disposition

Lord Justice Latham refused permission to appeal. Lord Justice Gage agreed, holding that the application had no real prospect of success. The formal order was: application refused.

1. Applicable principles. The judge correctly directed himself by reference to the principles in Prince Jefri Bolkiah v KPMG (A Firm) [1999] 2 AC 222. There is no general rule preventing a solicitor from acting against a former client. Restraint is justified where the solicitor is or may be in possession of confidential or privileged information which may be relevant to the action, and there is a risk that it may come into the hands of the new client to the former client’s detriment. The claimant must establish the confidential-information and relevance stages. The solicitor then bears the burden of satisfying the court that there is no risk of disclosure.
2. Confidentiality and relevance. Confidential information may include a solicitor’s general understanding, gained through instructions, of the former client’s procedures and decision-making. It need not be confined to specifically identified documents. The judge was entitled to infer that relevant confidential and privileged information had been imparted during the professional relationship. The fact that the earlier matters were approximately ten and five years old did not, without more, establish that the information was no longer relevant.
3. Risk and appellate review. The court recognised the need for the robust approach described by Tuckey LJ in Koch Shipping v Richards Butler [2002] 2 All ER (Comm) 957, so that fanciful or theoretical risks do not lead to injunctions. That caution did not justify appellate interference with the judge’s properly directed assessment. The importance of client confidence in the secrecy of lawyer-client communications, involving both perception and substance, was also relevant to the assessment of risk.
4. Conclusion. The judge had applied the correct legal test and was entitled to conclude that the requirements for the injunction were satisfied.

• Court of Appeal (Civil Division): On 19 March 2006, refused permission to appeal from HHJ Kaye QC’s decision; [2006] EWCA Civ 429.
• Queen’s Bench Division, Leeds District Registry, Mercantile Court: On 9 February 2006, HHJ Kaye QC granted an injunction restraining the solicitors from acting for the opposing clients and from disclosing confidential or privileged information.