Z, Re

Where a former client seeks to restrain a solicitor’s firm from acting against him, he must show that the firm possesses confidential information which is or may be relevant to the new matter. The risk of disclosure must be real, rather than fanciful or theoretical, but it need not be substantial. A solicitor’s lack of conscious recollection does not necessarily remove the risk, since memories may be triggered. The evidential burden then shifts to the firm to show that effective measures will ensure that no disclosure occurs. Information barriers may suffice in principle, but their adequacy is fact-specific. The court must balance protection of confidentiality against the client’s freedom to choose a solicitor. Any prejudice caused by delay may be addressed through terms attached to the injunction.

The husband applied to restrain the wife’s solicitors, F. & Co., from acting in English divorce and financial proceedings. The firm’s senior partner, Mrs. F, had represented the husband in earlier financial proceedings approximately nine years before and had developed a close personal relationship with him. She was not acting in the current proceedings, which were conducted by another partner, Mr. A.

The firm maintained that Mrs. F had no relevant confidential information, that any information was out of date, and that undertakings and information barriers eliminated any risk of disclosure. The husband relied on the nature of his former relationship with Mrs. F and the possibility of subconscious memories being triggered. The central issues were whether there was a real risk of disclosure, whether the proposed safeguards were effective, and whether the husband’s delay in applying should affect the remedy.

1. The application was granted. F. & Co. were restrained from acting for the wife, subject to the husband paying the wife £32,500 towards costs incurred during the period of delay.
2. The governing principles were those stated in Prince Jefri Bolkiah v KPMG [1998] 2 AC 222. The former client had to establish that the firm possessed confidential information imparted by him, to which he had not consented to disclosure, and which was or might be relevant to a matter in which the new client’s interests were adverse. The burden was not heavy.
3. The husband satisfied that burden. Mrs. F’s vague recollections, the length and nature of her retainer, her knowledge of the husband’s financial affairs and sensitivities, and their social relationship meant that confidential information might be revived by an unexpected trigger. The risk was modest but real, and therefore neither fanciful nor theoretical. The fact that Mrs. F did not personally conduct the current litigation did not remove the risk.
4. Once the first burden was satisfied, F. & Co. had to show that effective measures would ensure that confidential information could not come into the possession of the lawyers acting for the wife. There was no absolute rule that information barriers were insufficient, but their effectiveness depended on the facts. The proposed undertakings did not provide physical or practical segregation, and Mrs. F’s continuing close contact with the firm’s lawyers meant that accidental or inadvertent disclosure remained possible.
5. The fact that the proceedings were family proceedings did not create a special family-law exception or gloss to the Bolkiah principles. The authorities demonstrated that the assessment was fact-specific, including consideration of the age and duration of the former retainer, the nature of the information, the personnel involved, access to files, and the feasibility of effective barriers.
6. The husband’s five-week delay did not justify refusing relief. It was not shown to be tactical, and the wife’s resulting prejudice could fairly be compensated in money. The injunction was therefore granted on terms requiring payment of £32,500, subject to possible reconsideration by the ancillary relief judge if England remained the relevant jurisdiction and serious unfairness could be shown.