Duncan v Duncan

Counsel is not automatically barred from acting against a former client. The court may intervene where necessary to avoid a significant risk of disclosure or misuse of confidential information. The relevant concern is protection of confidential information, rather than a general perception of possible impropriety. Counsel has no continuing duty to advance a former client’s interests, but the duty to preserve confidential information is unqualified. An absolute conflict arises where counsel acts for and against the same client in the same case. Surprise cross-examination, without identified misuse of confidential information or a material risk of it, does not establish a procedural irregularity requiring the hearing to be set aside.

This was a second appeal by the wife from an order of Her Honour Judge Moir dated 12 November 2012. The judge had allowed the husband’s appeal from District Judge Morgan’s financial dispute resolution order, set that order aside, remitted the matter for rehearing and ordered costs against the wife.

Before the district judge, the wife’s counsel disclosed that he had represented the husband in financial proceedings arising from his first marriage five years earlier. The husband, who was represented by counsel, consented to the hearing proceeding. Following an adverse outcome, he challenged the representation, alleging a procedural irregularity and conflict of interest. The central issue was whether the prior representation, earlier skeleton arguments and the nature of the cross-examination created an inescapable conflict or a significant risk of misuse of confidential information.

1. Disposition. The appeal was allowed. The order of Her Honour Judge Moir was set aside and District Judge Morgan’s order was restored.
2. Governing principles. Lady Justice Macur held that Lord Millett’s reasoning in Prince Jefri Bolkiah v KPMG (A firm) [1999] 2 A.C 222 remained good law and was the leading authority on the relevant principles. Counsel is not absolutely precluded from acting against a former client. The court may restrict the representation where necessary to avoid a significant risk of disclosure or misuse of confidential information. Intervention is directed to protecting confidential information, not merely avoiding a perception of possible impropriety. Counsel has no obligation to defend or advance a former client’s interests, but has an unqualified duty to preserve confidential information. The court should intervene unless satisfied that there is no risk of inadvertent or accidental disclosure to a person with an adverse interest (para [17]).
3. Same-client conflict. Counsel cannot act for and against the same client in the same case. That situation creates an inescapable conflict of interest. It did not follow that representation against a former client in separate litigation was automatically prohibited (paras [14], [17]).
4. Application. The earlier and later disputes were different proceedings, although some assets overlapped. Counsel had disclosed the prior representation immediately. The husband was represented by counsel and gave unequivocal consent to the hearing proceeding. No objection was made during the hearing, and no specific confidential information was identified as having been misused. The examples relied on by the judge were incapable of supporting an inference of subconscious misuse. The earlier skeleton arguments had no evidential weight and there was no suggestion that they had been used. Surprise cross-examination or inconsistency with the case previously advanced for the husband did not establish misuse or an inescapable conflict (paras [16], [19]–[23]).
5. The principles were reflected in paragraph 603D to F of the Bar Code of Conduct, but reliance on the cab rank rule was unnecessary. Lord Justice Ryder agreed and added that counsel had not breached paragraph 603 of the Code (paras [18], [27]).

1. Court of Appeal (Civil Division) [2013] EWCA Civ 1407: appeal allowed; the High Court order was set aside and the district judge’s order restored.
2. High Court of Justice, Queen’s Bench Division: Her Honour Judge Moir allowed the husband’s appeal from the district judge, identified a procedural irregularity, set aside the financial dispute resolution order, remitted the matter for rehearing and ordered costs against the wife. The merits of the substantive order were not determined.
3. District Judge Morgan: financial dispute resolution hearing conducted on 10 and 11 February 2011; judgment handed down and order made on 19 April 2011.