BCD v Simons Muirhead Burton LLP

A solicitor is not disqualified merely because the solicitor previously acted for another party connected with the dispute. Where there was no solicitor-client relationship, intervention requires proof that the solicitor possesses relevant confidential information, that it is likely to come into the opposing party’s possession without intervention, and that there is a real risk of prejudice through misuse.

On summary judgment, the court must not conduct a mini-trial, but it need not accept factual assertions at face value. A claim may be dismissed where the evidence shows no real prospect of success and there is no other compelling reason for trial. A defendant applying to strike out or for summary judgment need not file a defence before the application is heard.

The claimant brought proceedings against his former solicitors, alleging breach of contract and professional negligence in relation to the preparation of a claim against his former asylum solicitors and counsel. Three applications were before the court: an application to disqualify the defendant’s solicitors for alleged conflicts and misuse of confidential information; the defendant’s application for strike out or summary judgment; and an application requiring the defendant to file a defence.

The dispute concerned the scope of the defendant’s pre-action retainer, alleged failures concerning expert evidence, alleged delay in addressing dissemination of confidential material, and causation. The central questions were whether the defendant’s solicitors should be disqualified, whether a defence was required before the defendant’s application, and whether the claim had any real prospect of success.

1. The application to disqualify RPC was dismissed. Although the court may intervene where a solicitor with no solicitor-client relationship has obtained confidential information belonging to the opposing party, the claimant had to establish: possession of confidential information relevant to the dispute; a likelihood that the information would come into the opposing party’s possession without intervention; and a real risk of prejudice from misuse. The claimant identified neither the relevant information nor a real risk of prejudice. Alleged data-protection violations were irrelevant to the disqualification issue. [2020] EWCA Civ 609 was applied.

2. The application requiring a defence was dismissed as totally without merit. Under Civil Procedure Rules 1998, CPR r.3.4(7) and r.24.4(4), a defendant applying to strike out a claim or for summary judgment need not file a defence before the application is heard.

3. The defendant’s application for summary judgment succeeded. The claimant had to show no more than a real prospect of success; the defendant had to show that there was no real prospect of success. The court must avoid a mini-trial, but may analyse factual assertions and reject assertions lacking substance, particularly where contradicted by contemporaneous documents. [2003] EWCA Civ 472 was applied.

4. The correspondence defining the retainer showed that the agreed fee covered the pre-action stage, including preparation of a letter of claim and obtaining advice and input from experts. It did not establish an agreement to obtain separate formal expert reports for later litigation. The claimant’s own correspondence acknowledged the limited scope of the expert involvement.

5. The causation case had no real prospect of success. After deciding to act in person, the claimant had more than three years to issue proceedings against the earlier solicitors and counsel but did not do so. He offered no acceptable explanation. The alleged four-week delay in sending a letter was inadequately particularised and did not provide a realistic basis for the losses claimed. Summary judgment was therefore entered for the defendant and the claim was dismissed.