The Bank of London Group Limited v Simmons & Simmons LLP

A solicitor may be restrained from using a former client’s confidential information only where the information is confidential, relevant to the matter, and there is a real risk of disclosure or misuse. General assertions may establish confidentiality, but the client must identify the information with sufficient particularity to show its relevance. The court may accept an effective information barrier where clear evidence shows that it eliminates any real risk of disclosure. The mere possibility of information reaching a competitor is insufficient.

The claimant, a newly licensed clearing bank, had instructed the defendant solicitors on limited regulatory work. The defendant was separately acting for Bank of London and The Middle East Plc in a passing-off dispute concerning the claimant’s name. The claimant sought an injunction restraining the defendant from acting in that dispute and from disclosing confidential information obtained during the retainer.

The hearing was treated as effectively the trial of the action. The claimant abandoned the application to restrain the defendant from acting. The remaining issue was whether the claimant was entitled to protection for its confidential information, together with related applications concerning evidence, case management and costs.

1. Injunction dismissed. The claimant established that the documents supplied during the solicitor-and-client relationship were confidential. Communications passing for professional advice will ordinarily be confidential.
2. The claimant failed to establish that the information was relevant to the passing-off claim. A client must identify the confidential information relied on with sufficient particularity. The claimant’s broad description of internal business operations and technology did not show relevance. If the passing-off claim required evidence explaining the lack of overlap between the businesses, disclosure of that information might assist the claimant rather than prejudice it.
3. An injunction also requires a real risk of disclosure or misuse. The risk must be real rather than fanciful or theoretical, although it need not be substantial. The defendant had to show by clear and convincing evidence that its information barriers eliminated that risk.
4. The unchallenged evidence established that access had been restricted, relevant personnel had not shared the information with the litigation team, and an effective barrier had been implemented as soon as practicable. There was therefore no real risk of disclosure to Bank of London and The Middle East Plc.
5. The variation application was granted. The costs of the defendant’s timetable application were ordered to be in the injunction application. The defendant obtained its standard-basis costs of the unsuccessful evidence-exclusion application, and the claimant obtained its costs of the variation and extension-of-time applications.