Winters v Mishcon De Reya

A solicitor may act against a former client unless the former client establishes a real risk arising from confidential information. Where clients share a retainer, or have a common interest in a related matter, neither can claim legal professional privilege against the other for communications within that retainer or matter. The court should be slow to infer a separate retainer where solicitors act for an organisation and the matter also concerns a senior officer. Any residual supervisory jurisdiction over solicitors should be exercised only in rare cases, applying a robust and commonsense approach. The public interest in a client retaining its chosen solicitors is important. The action therefore failed because the information relied on was not confidential as between the claimant and the organisation.

The claimant was chief executive of the JNF Charitable Trust. The defendant firm had acted for the JNF and, on two limited occasions, for the claimant personally. After the claimant’s employment position deteriorated, the defendant continued to act for the JNF in relation to the employment dispute. The claimant sought to restrain that representation, alleging misuse of confidential information, breach of professional obligations and breach of the defendant’s duties as solicitor.

The central issues were whether the defendant had acted for the claimant, whether the information relied on was confidential as against the JNF, and whether the court should intervene under the principles concerning former clients or its general supervisory jurisdiction.

1. The action was dismissed. The defendant acted for the claimant personally only during two brief periods: in connection with discovering the identity of Anthony Jacobs, and in connection with proposed libel proceedings. The retainers were closely linked to contemporaneous work for the JNF and involved no relevant conflict of interest.
2. Where there is a joint retainer, or solicitors act for clients with a common interest in related matters, neither client may claim legal professional privilege against the other in respect of documents or communications within the scope of that retainer or matter. The principle in CIA Barka de Panama SA v George Wimpey & Co Ltd [1980] 1 Lloyd’s Rep 598 applied.
3. Under Bolkiah v KPMG [1999] 2 AC 222, a former client seeking restraint must establish that the solicitor possesses information confidential to the former client, disclosure of which has not been authorised, and that the information is or may be relevant to a new matter in which the new client’s interests are or may be adverse. The claimant failed at the first stage because the information disclosed to Dr Julius was not confidential as between him and the JNF.
4. The court was prepared to assume, without deciding, that a residual power existed to intervene in rare cases under its general jurisdiction over solicitors even without misuse of confidential information. This was not such a case. The employment dispute did not amount to an objectionable change of sides, and the public interest in clients retaining their chosen solicitors required solid grounds for intervention.
5. The court rejected the suggested private-law remedy for breach of professional conduct rules on the facts, without deciding generally whether those rules could create enforceable private rights.

First instance decision. No appellate history was stated in the judgment.