Winters v Mishcon De Reya

The claimant alleged that the defendant solicitors had acted against him in breach of confidence and in conflict with earlier retainer(s), and sought an injunction to prevent them acting for the JNF in employment proceedings. The court found that Mishcon de Reya had acted for Mr Winters in two brief and limited episodes (an ancillary retainer to obtain ISP disclosure in March/April 2006 and an inchoate retainer in late July 2006 concerning threatened libel proceedings) but that these retainers were either ancillary to, or closely linked with, contemporaneous instructions from the JNF.

Applying the established principles on joint retainers, legal professional privilege and misuse of confidential information (as discussed in Bolkiah v KPMG and CIA Barka de Panama SA v George Wimpey), the court held that no relevant confidentiality arose between Mr Winters and the JNF in respect of the matters complained of, and therefore the prerequisites for restraining the solicitors under the Bolkiah line of authority were not satisfied.

Accordingly the claim failed and was dismissed.

This was a first instance trial of a claim by the long-standing chief executive of the United Kingdom branch of the Jewish National Fund (the JNF) against the JNF’s regular solicitors, Mishcon de Reya. Mr Winters sought injunctive relief and damages for an alleged threatened breach of confidence and improper conflicted representation after Mishcons acted for the JNF and later for the JNF in an employment dispute that led to his suspension.

• Nature of the claim/application: an action for threatened breach of confidence and an interim injunction to prevent Mishcons acting for the JNF in relation to Mr Winters’ employment and its termination.
• Procedural posture: first instance hearing in the Chancery Division before Henderson J over three days (3–5 September 2008). Earlier interlocutory steps included an initial hearing before Blackburne J where the interim injunction application was not pursued and directions for a speedy trial were given.
• Issues framed by the court: whether and when Mishcons had acted for Mr Winters personally (as opposed to for the JNF); whether Mr Winters had imparted confidential information to Mishcons which remained confidential as between him and the JNF; whether the Bolkiah jurisdiction (restraint to prevent misuse of confidential information by former advisers) or the court’s supervisory powers over solicitors required the firm to be restrained; and whether any professional conduct rules had been breached giving rise to a private right of action.

The court made detailed findings of fact on the evidence. Mishcons had acted for the JNF throughout major related matters (a dispute with the Israeli charity KKL, the Lee & Allen forensic investigation, and the Charity Commission inquiry). On the evidence the court found two limited occasions when Mishcons also acted for Mr Winters personally: (i) an ancillary retainer to obtain ISP disclosure identifying the author of anonymous press letters (March/April 2006) and (ii) an inchoate/separate retainer in late July 2006 relating to threatened libel letters and the prospect of proceedings (which quickly became moribund).

The judge concluded that information disclosed by Mr Winters to Dr Julius of Mishcons in July 2006 did not carry a reasonable expectation of confidentiality as between Mr Winters and the JNF because Mishcons were acting for both and the matters were of common interest. Applying the legal tests in Bolkiah and related authorities, the court held that Mr Winters could not establish the existence of confidential information which was both his and capable of being misused against him by the firm in the ensuing employment dispute. Alternative arguments based on the court’s supervisory jurisdiction and on alleged breaches of professional conduct rules were rejected on the facts. The action was dismissed.

The claim is dismissed. The defendant solicitors had only acted for the claimant in two brief, limited contexts, each closely linked to their retainer for the JNF; no confidentiality existed between claimant and JNF in respect of the material relied on, so the prerequisites for restraining the firm under the Bolkiah principle were not met. Alternative bases for relief were not made out.