Coll v Floreat Merchant Banking Ltd & Ors

The High Court’s jurisdiction to supervise solicitors is distinct from its contempt jurisdiction and is exercised sparingly. A solicitor’s undertaking given otherwise than to the court is ordinarily enforced by an order requiring performance, an injunction, or a compensatory claim. Immediate committal will generally be inappropriate, particularly where disciplinary proceedings before the Solicitors Regulation Authority provide a suitable remedy and where criminal-law principles of certainty apply.

Permission to commence committal proceedings should be refused where there is no reasonable prospect of proving a breach to the criminal standard. Claims may be joined under CPR Part 20 where their factual and evidential overlap outweighs delay, expense and procedural complexity.

The claimant brought proceedings concerning ownership of a computer used during her employment and access to information stored on it. She sought permission to commence committal proceedings against the defendants and their solicitors for alleged breaches of undertakings given in correspondence. She also sought amendments to her claim.

The defendants sought to add claims against third parties concerning alleged misappropriation of confidential information, to enlarge the confidentiality club and to amend the procedural timetable. The central issues were whether the alleged solicitor’s undertaking had been breached, whether committal was an appropriate remedy, and whether the additional claims should proceed within the existing action.

1. Committal and solicitor’s undertakings. An undertaking to the court is enforceable as an injunction and breach may found committal proceedings. The High Court’s inherent disciplinary jurisdiction over solicitors is separate from its contempt jurisdiction and is preserved by Solicitors Act 1974, section 50(2).
2. An undertaking given by a solicitor otherwise than to the court may be summarily enforced. A positive undertaking will ordinarily be addressed by an order for performance, followed, if necessary, by committal for breach of that order. Where performance has become impossible, compensation may be sought. A negative undertaking will ordinarily be addressed by an injunction or undertaking to the court. Immediate committal for breach of the original undertaking will generally be inappropriate, particularly where the Solicitors Regulation Authority is the more suitable forum.
3. Committal proceedings are criminal proceedings for Convention purposes. The requirements of legal certainty under articles 6 and 7 of the European Convention on Human Rights, together with the availability of other remedies and the risk of disrupting a solicitor’s conduct of litigation, strongly militated against extending immediate committal to a non-court undertaking.
4. The undertaking relied on was construed objectively and, where necessary, in favour of its recipient. In context, however, the reference to the “Computer” concerned the physical machine and did not extend to copies or images of its contents. The claimant’s solicitors had understood that limitation and had sought further protection by commencing proceedings. There was therefore no reasonable prospect of proving breach to the criminal standard, and permission to bring the committal application was refused.
5. The proposed Part 20 claims concerned substantially overlapping allegations, witnesses and documents. Although joinder would delay and lengthen the trial, the risk of inconsistent findings and duplicated proceedings made coordinated determination in one action preferable under CPR Part 20. The application to set aside the joinder order was refused and the defendants were permitted to amend their Defence and Counterclaim.
6. The confidentiality-club application was allowed. The directions hearing and trial window were vacated, and the claim was to be transferred to the Chancery Division for directions.