Z, Re [2009] EWHC 3621 (Fam)

[2009] EWHC 3621 (Fam)Case No FD09D01654
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Monday, 21 st December 2009
Before
MR. JUSTICE BODEY__________B E T W E E N:RE Z__________Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com____________________J U D G M E N T
[1]This is an application by a husband, the respondent in the wife’s divorce proceedings, by which he seeks an order that the wife’s solicitors be debarred from acting any further for her in the divorce or financial matters and that they do remove themselves from the court record. I propose to anonymise this judgment and will refer to the husband and wife without giving their names. Nor will I name the solicitors in question, but will call them “F. & Co.”[2]The basis of the husband’s objection to the wife’s solicitors acting is the fact that the senior partner, a Mrs. F, represented him in financial proceedings against the wife some nine years ago. The wife wants her solicitors to continue to act for her. She relies on the fact that Mrs. F is not personally dealing with her case, but rather one of Mrs. F’s partners, a Mr. A. She and F. & Co. deny that Mrs. F now has any confidential information and maintain that any such information would, in any event, be out of date and irrelevant. Further, they assert that adequate ‘information barriers’ have been or can be put in place. Those, essentially and over-simplified, are the issues. The husband has been represented before me by Mr. Nicholas Cusworth QC. The wife has been represented by Mr. Charles Howard QC and Mr. Sennatt (who, for the avoidance of doubt, do not represent F. & Co. as well). Background.[3]The husband is 53 and the wife is 59. They were married in 1992 and have a daughter aged 13. The husband is, or was, a businessman. In August 1999 the first of several separations occurred, there being a reconciliation in February 2001. In the divorce proceedings which followed the separation in August 1999 the husband instructed Mrs. F (then one of three partners in G. & Co. Solicitors) to represent him. In January 2000, the husband sold his interest in a business and received about £12m net. The wife was anxious to ensure that this money was not spirited away and so, on 21st February 2000, she obtained an ex parte ‘freezing’ order. The husband immediately instructed Mrs. F to apply for it to be set aside.[4]At about this time, following news reports of the husband’s wealth, he was attacked and badly beaten up, being detained in hospital. Afterwards, he moved home and ended up living close to Mrs. F. He states that he became heavily dependent upon her at what he puts as “one of the darkest periods” of his life. He says that their “...telephone calls were frequent and took place before, during and after weekday office hours. We spoke regularly, sometimes during weekends.”[5]On 23rd February 2000 Mrs. F applied on the husband’s behalf for a discharge of the wife’s freezing order. On 25th February 2000, there was a hearing at which the husband was represented by Mrs. F. and leading counsel. The husband says that over the period of his retainer of G. & Co. (and more particularly of Mrs. F) there were “...a number of court hearings.”[6]In March 2000 the husband says he was invited by Mrs. F to her home for a Friday night dinner marking the start of the Jewish Sabbath. There he met and was introduced to her husband, who was one of the other partners in G. & Co., and her son. The next day he went to the synagogue with her husband and their son. He says there were other social meetings with Mrs. F’s family members and that she introduced him to her brother, with whom he subsequently became friends and to whose house he was invited. Following what the husband describes as “...a number of family meetings”, he and Mrs. F discovered that their respective fathers had been at school together in the distant past and had known each other well. He says:
“...my relationship with Mrs. F developed beyond a client/solicitor retainer. I felt we became friends. She knew my thoughts and feelings and knew how my mind was working at the time. She knew my views on the pressing issue of the injunction which the wife had obtained against me and we spoke in specific detail about that.”
[7]There then occurred some disagreement between the husband and Mrs. F which led her to write him a letter of 13th April 2000 concluding:
“...I look forward to seeing you in Eilat.”
That comment arose because it happened that both the husband and wife were about to go on holiday to Eilat together later in April 2000, as by chance was Mrs. F. The husband says:
“…We met Mrs. F whilst we were there and indeed I had a number of meetings with her unbeknown to my wife to discuss matters, particularly given the fact that the injunction was still in place at the time.”
The wife herself vaguely remembers meeting Mrs. F. on that holiday.[8]At the end of August 2000, the husband terminated his retainer of G. & Co. and of Mrs. F. Instead, he instructed his present solicitors (“the husband’s solicitors”) who have represented him ever since. His retainer of Mrs. F and of G. & Co. had thus lasted for one year from August 1999 to August 2000. Notwithstanding such termination of his retainer of G. & Co., the husband met Mrs. F once more in Eilat in October 2000, although this was just by chance. I pause at this point to record that those advising the wife decided not to raise with Mrs. F the husband’s case about the extent of their social contact, so as not to risk triggering Mrs. F’s memories. So, although Mrs. F has herself sworn a very recent affidavit, it does not deal with or rebut the husband’s evidence about their social relationship.[9]In May 2002, almost two years after the husband had ceased instructing G. & Co., Mr. A joined that firm and became an assistant solicitor there in October 2002. Following the parties’ above reconciliation in February 2001, there were further separations and reconciliations during the course of which a decree nisi was granted to the wife in December 2001 and subsequently rescinded in 2006. In the meantime the husband had consolidated his business interests, some or all of which he sold in 2004 receiving in the region of £18m net. The date of the parties’ final separation appears from a chronology before me to have been in 2008. By this time, I understand from the same source that both parties had been living for some time in Spain and I am told that they still live there (separately from each other) now.[10]Meanwhile, in October 2007, Mrs. F had ceased to be a partner with G. & Co. and had formed a new partnership, F. & Co. of which she was and is the senior partner. Mr. A and several other solicitors who had worked for G. & Co. left that firm with her and joined her to comprise F. & Co. All the husband’s records and files remained at G. & Co. That firm continues in existence, although of course differently constituted from when Mrs. F was a partner.[11]The new firm, F. & Co., comprises some nineteen partners and fee-earners. Mr. Cusworth draws attention to the firm’s website, which describes F. & Co. as having been formed in 1982 (sic) and having grown steadily since to become a leading internationally known niche practice. He points to the fact that a Mr. J is shown on the website as F. & Co’s managing partner, it being common ground that Mr. J was working for G. & Co. at the time in 1999/2000 when that firm was representing the husband, although he (Mr. J) was not personally involved on the husband’s case. Mr. Cusworth points out that the website refers to Mr. A. as having joined F. & Co. in 2002 and to some five or six other members of F. & Co. as having joined on various dates pre-2007 (i.e. before F & Co was in fact set up). Part of Mr. Cusworth’s case is thus that F. & Co’s website treats joining G. & Co as the same as joining F. & Co, such that G. & Co. effectively became and continued as F. & Co. So he submits that in reality the same firm is now representing the wife as used to represent the husband: it is the same business with a different name. Mr. Howard submits to the contrary: that the two firms G. & Co. and F. & Co. are quite distinct and that the wording of F. & Co’s website was merely deployed as a ‘marketing-tool’ to maximise a sense of the firm’s age and continuity. I can say straightway that I shall not decide this case on the basis that F. & Co. is essentially the same firm as G. & Co., partly because I am far from satisfied that that is factually or legally accurate and partly because the tests set out below would have to be applied in any event.[12]In February 2009 the wife approached F. & Co. to act for her in new divorce and financial proceedings which she wished to issue in this country. Mr. A’s affidavit states that the Chief Executive of F. & Co. had told him (Mr. A) that he (the Chief Executive) had already asked Mrs. F whether she had any recollection of the husband or his case and that she had said that she had no such recollection whatsoever, though indicating that the name sounded familiar. In these circumstances, in March 2009, F. & Co. accepted instructions from the wife to act for her against the husband in her intended divorce and financial proceedings.[13]On 10th March 2009, the wife had her first meeting with Mr. A, who has been the partner of F. & Co. representing her ever since, with the help of ‘a small team’, which does not include Mrs. F. Having obtained the file of the wife’s papers from her previous solicitors, Mr. A gleaned that there had been two fee-earners working with Mrs. F on the husband’s case at G. & Co. in 1999/2000, who both later left G. & Co. Neither of them presently works for F. & Co.[14]On 7th April 2009, F. & Co. issued the wife’s divorce petition in this country. I am told by Mr. Howard that there were difficulties over service, as a result of which it was not in the result formally served on the husband until the end of July 2009. On 16th April 2009, in ignorance of the wife’s proceedings in this country, the husband issued divorce proceedings in Spain. On 25th May 2009 the wife issued her form “A” here, seeking all forms of financial relief. Although it appears that, as at 25th May 2009, the husband became aware through his Spanish solicitors of the existence of the wife’s English divorce proceedings, there is no evidence to gainsay his assertion through Mr. Cusworth that the first time he (the husband) became aware that the wife was being represented by F. & Co. was on about 2nd June 2009.[15]Two days later on 4th June 2009, the husband’s solicitors wrote to F. & Co. requesting them to cease acting for the wife, on the basis that Mrs. F had previously acted for him. On 17th June 2009, at a hearing in Spain, the husband’s Spanish petition was stayed (being the second in time) in order for the English court to determine which proceedings should go forward. That issue is set down for hearing at the Royal Courts of Justice in February 2010.[16]On 19th June 2009 F. & Co. wrote a reasoned response to the husband’s solicitors, declining to withdraw from acting for the wife. The letter points out that G. & Co. still exists and operates entirely separately from F. & Co.; also that all the husband’s files remain with G. & Co. and have been archived. It stresses that Mrs. F has no involvement with the case at all and that its conduct is with a restricted team, none of whom were employed by G. & Co. at the time of the husband’s retainer of Mrs. F. In any event, it is said that ‘safety barriers’ have been put in place. Reliance is also placed on a letter of 5th June 2009 from the Solicitors’ Regulation Authority giving F. & Co. ‘clearance’ to act.[17]On 25th June 2009, the husband’s solicitors wrote:
“...[the husband] does not agree with your analysis, but has no wish to be embroiled in yet further litigation with [the wife].”
On 27th July 2009, the husband was formally served with the wife’s English divorce petition and her form “A” for ancillary relief. On 31st July 2009, he lodged an answer asserting that both parties are domiciled and habitually resident in Spain and denying the English court’s jurisdiction.[18]Also on 31st July 2009, the husband’s present solicitors wrote again requesting F. & Co. to accept that they should not be acting for the wife and asking them to withdraw from the proceedings. On or about 7th August 2009, F. & Co. replied declining to withdraw and asserting that significant costs (since put at some £47,500) had been incurred by the wife since the husband’s solicitors’ letter of 25th June 2009 (above). It is submitted by Mr. Howard that the delay in the husband’s pressing his case between 25th June 2009 and 31st July 2009 and his apparent acquiescence to F. & Co.’s acting (coupled with the wife’s detriment in costs) should cause the husband to be refused any such relief, which is denied, as he might otherwise be entitled to. I propose to deal with this submission on acquiescence as a discrete issue at the end of this Judgment.[19]On 19th August 2009, the husband’s solicitors issued the notice of application referred to in the first paragraph of this judgment. (For completeness, on 11th September 2009 the wife issued an application for maintenance pending suit, which is fixed for hearing in January 2010). The Law.[20]Situations like this create a tension between two public interests: first, there is the interest of the client in being able to have the fullest confidence in the solicitor whom he instructs, for which purpose there should be no risk or perception of risk that confidential information would be disclosed to anyone else. Second, there is the interest in the freedom of the solicitor to be able to take instructions from any member of the public, together with the interest of members of the public to be able to instruct solicitors of their choice whenever there is no real need for constraint: see in Re a firm of solicitors [1995] CH 1, per Lightman J, who there noted that “...there must be good and sufficient reason to deprive a client of the solicitor of his choice”.[21]Since then, the law has been authoritatively laid down by the House of Lords in Prince Jefri Bolkiah v. KPMG [1998] 2 AC 222, where Lord Millett gave the main opinion. I propose to rehearse it in some detail, although thereby lengthening this Judgment, as it is key to the required decision. He first affirmed that the basis of the court’s jurisdiction to interfere on behalf of a former client is “...founded not on the avoidance of any perception of possible impropriety, but on the protection of confidential information.” Then having distinguished the case of existing (as opposed to former) clients, he continued:
“...where the court’s intervention is sought by a former client, however, the position is entirely different. The court’s jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer....The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence.Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters. But given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case.”
[22]What then is the extent of the solicitor’s duty? Lord Millett answered that question as follows:
“...the duty to preserve confidentiality is unqualified. It is a duty to keep the information confidential, not merely to take all reasonable steps to do so...The former client cannot be protected completely from accidental or inadvertent disclosure. But he is entitled to prevent his former solicitor from exposing him to any avoidable risk; and this includes the increased risk of the use of the information to his prejudice arising from the acceptance of instructions to act for another client with an adverse interest in a matter to which the information is or may be relevant.”
[23]As to the degree of risk which a claimant has to establish, Lord Millett said:
“...It follows that in the case of a former client, there is no basis for granting relief if there is no risk of the disclosure or misuse of the confidential information... It is in any case difficult to discern any justification in principle for a rule which exposes a former client without his consent to any avoidable risk, however slight, that information which he has imparted in confidence in the course of a fiduciary relationship may come into the possession of a third party and be used to his disadvantage. Where in addition, the information in question is not only confidential but also privileged, the case for a strict approach is unanswerable. Anything less fails to give effect to the policy on which legal professional privilege is based. It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.... The court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial... In my view no solicitor should, without the consent of his former client, accept instructions unless, viewed objectively, his doing so will not increase the risk that information which is confidential to the former client may come into the possession of a party with an adverse interest.”
[24]In circumstances where a former client does satisfy that burden upon him, Lord Millett then set out what the solicitor has to show if he is to be able to continue acting:
“...Once the former client has established that the defendant firm is in possession of information which was imparted in confidence and that the firm is proposing to act for another party with an interest adverse to his in a matter to which the information is or may be relevant, the evidential burden shifts to the defendant firm to show that even so there is no risk that the information will come into the possession of those now acting for the other party. There is no rule of law that ‘Chinese Walls’ or other arrangements of a similar kind are insufficient to eliminate the risk. But the starting point must be that, unless special measures are taken, information moves within a firm. In MacDonald Estates v. Martin 77 D.L.R. (4th) 249, Sopinka J. said at p. 269 that the court should restrain the firm from acting for the second client ‘unless satisfied on the basis of clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur.’ With the substitution of the word ‘effective’ for the words ‘all reasonable’ I would respectfully adopt that formulation.”
[25]At the conclusion of his speech, Lord Millett described the burden on a firm of solicitors of showing that there is no risk of information confidential to the former client being unwittingly or inadvertently passed on, as being “heavy”.[26]In the same case (Bolkiah), Lord Hope of Craighead said this on the same issues:
“...It is the solicitor's duty to ensure that the former client is not put at risk that confidential information which the solicitor has obtained from that relationship may be used against him in any circumstances. Particular care is needed if the solicitor agrees to act [I repeat that Mrs. F is not personally acting] for a new client who has, or who may have, an interest which is in conflict with that of the former client. In that situation the former client is entitled to the protection of the court if he can show that his solicitor was in receipt of confidential information which is relevant to a matter for which the solicitor is acting, against the former client's interest, for a new client. He is entitled to insist that measures be taken by the solicitor which will ensure that he is not exposed to the risk of careless, inadvertent or negligent disclosure of the information to the new client by the solicitor, his partners in the firm, its employees or anyone else for whose acts the solicitor is responsible. ...The court will not intervene if it is satisfied that there is no risk of disclosure. But if it is not so satisfied, it should bear in mind that the choice as to whether to accept instructions from a new client rests with the solicitor and that disclosure may result in substantial damage to the former client, for which he may find it impossible to obtain adequate redress from the solicitor. It may be very difficult, after the event, to prove how and when the information got out, by whom and to whom it was communicated and with what consequences. In that situation everything is likely to depend on the measures which are in place to ensure that there is no risk that the information will be disclosed. If the court is not satisfied that the measures will protect the former client against the risk, the proper course will be for it to grant an injunction.”
[27]The principles laid down in Bolkiah have since been discussed and applied in the several authorities to which I have been referred, namely, in chronological[28]Only two of the above are family cases (Davies and Re L) and their facts are quite different and distinct from those of this case. Consideration of these various authorities well demonstrates that which has been recognised in them, namely that every case in this sphere is fact-specific. The picture may change, for example, according to how long ago and for how long the former solicitor acted for the former client; the precise nature of the work done by the former solicitor for the former client and the precise nature of the work being done or proposed to be done by the former solicitor (or the firm which he or she has joined) for the new client; how many individuals who acted for the former client have moved to the firm about to represent or representing the new client; how many people will be working on the case at the new solicitors; where the former solicitor’s files of the former client are kept and who can access them; whether the firm against which objection is taken has already been working on the relevant matter for a period of time before the former solicitor joins it having represented the former client; and whether effective ‘information barriers’ can be made. Permutations and nuances of detail as to factors like these are considerable and vary from case to case, a point which has to be borne in mind when considering dicta from the various authorities to which I have been referred, each having a factual matrix quite different from this case. The competing arguments. On behalf of the husband[29]Mr. Cusworth submits that this is a clear case for an order restraining F. & Co. from acting for the wife. He does not accuse Mrs. F of any lack of good faith when she says that she remembers nothing about the case, but he particularly emphasises the social relationship which developed between her and the husband which has not been challenged, whereby she became something of a confidante. Whilst not seeking to go behind her asserted lack of recollection, he says that she will inevitably have confidential information in the recesses of her memory which could be triggered by anything inadvertently happening or being mentioned in F. & Co’s offices. He stresses the smallness of F. & Co. and the close regular professional conduct which, as a ‘hands on’ senior partner, Mrs. F has with her staff. Even if it were not direct financial information, he says it could be equally damaging information about the husband’s sensitivities, his feelings, his strengths and weaknesses and how best to handle them. If such were to leak out, it would or could impact on F. & Co’s conduct of the case for the wife in a way which would be wholly unfair and wrong; and, in any event, continues Mr. Cusworth, the husband’s reasonable perception of unfairness would corrupt the proper balance of the entire process. So, submits Mr. Cusworth, the husband has satisfied the burden on him (not a heavy one) to show a real risk of the type envisaged in Bolkiah and the other authorities.[30]Then, once the burden has passed to F. & Co., Mr. Cusworth maintains that the safeguards put forward do not ‘get anywhere near the starting line’ (as he put it) as being effective to ensure that no disclosure will inadvertently occur. Those proposed safeguards take the form of the following: (i) Mr. A offers to undertake that:
“I will not attempt to discuss [the instant case] with Mrs. F”. (ii) Mrs. F offers to undertake that: “(a) I will not discuss what I know (if anything) with Mr. A or any member of his team or with [the wife]; (b) I will not access [the wife’s] file physically or electronically; and (c) I am not [and, inferentially, ‘will not be’] present at any monthly review meeting when this matter will be discussed”. (iii) The wife herself offers to undertake: “I will not attempt to speak to Mrs. F in respect of my case” and she (the wife) waives any rights which she may have in respect of documents accessible from G. & Co. (iv) Last, in a proposal volunteered during the course of the hearing, Mr. J offers to undertake that: “(a) I will supervise and monitor all the ongoing case files on Mr. A whilst the firm of F. & Co. have conduct of the litigation in this case on behalf of [the wife] including conducting the monthly review meetings with him in respect of his cases; and (b) I will provide Mrs. F with no more than a note in respect of the above cases [i.e. Mr. A’s cases] with the exception of [the instant case], for which no briefing note has been or will be supplied to Mrs. F.”
[31]Mr. Cusworth points out that no physical separation is offered as between Mrs. F and those working on the case for the wife. Whilst he accepts that everyone who offers undertakings about confidentiality and so on will do his or her best conscientiously to comply with them, that does not he says do anything to avoid the risk of a moment’s inadvertence. He relies on the fact that in Koch Lord Justice Clarke cited without adverse comment a submission by counsel based on the Australian case of Newman v. Phillips, where Steytler J said:
“...Walls or ‘information barriers’ of that kind have not often found favour with the courts. In D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118, at 122-123, Bryson J said:‘I would think that the court would not usually undertake attempts to build walls around information in the office of a partnership, even a very large partnership, by accepting undertakings or imposing injunctions as to who should be concerned in the conduct of litigation or as to whether communication should be made among partners or their employees. The new client would have to join in such an arrangement and give up his right to the information held by such parties and staff as held it. Enforcement by the court will be extremely difficult and it is not realistic to place reliance on such arrangements in relation to people with opportunities for daily contact over long periods, as wordless communication can take place inadvertently and without explicit expression, by attitudes, facial expression or even by avoiding people one is accustomed to see, even by people who sincerely intend to conform to control.’ Those comments have many times since been quoted with approval: ...”

On behalf of the wife

[32]Mr. Howard argues entirely to the contrary, submitting that this is the clearest case for the dismissal of the application He says that the authorities require the former solicitor to be presently possessed of information, which Mrs. F has said on oath she is not. She sees some 200 cases per annum and deals with numerous cases in another professional capacity (which I will not identify) so it is hardly surprising, he says, that she does not have any recollections. He emphasises that this case involves a single solicitor holding (if she had any) confidential information and he says that this differentiates this case from many, if not most, of the reported cases. Further, the relative smallness of F. & Co. makes it easier to enforce undertakings about confidentiality than is the case with bigger firms. He relies, particularly, on Nick’s Sports, where a sole individual solicitor ‘changed sides’ and Longmore J refused injunctive relief for just these sort of reasons. Having emphasised that Mrs. F now has no confidential information, Mr. Howard further argues that (even if she had any) it would not now be relevant, some nine years after the event. There have since been several failed reconciliations and the financial picture will inevitably have changed. There is nothing, given the confidentiality undertakings on offer, which could possibly activate any subconsciously stored memories about the husband or his case in 1999/2000, because Mrs. F has had and will have nothing personally to do with the case. Thus, the husband has not even got over the first hurdle set out in Bolkiah and his claim should fail at that point.[33]Mr. Howard also submits that the husband’s acquiescence between 25th June 2009 and 31st July 2009 serves clearly to show that this application is a purely tactical one, launched to make life difficult for the wife and to put her to greater expense and disadvantage. She is having to borrow to litigate, he says, and costly work has now been done for her by F. & Co. as the husband must clearly have realised. The court should bear this in mind when considering the husband’s claimed perception of unfairness in F. & Co.’s acting for the wife. Mr. Cusworth, in parenthesis, rejects this out of hand, accusing the wife and F. & Co. themselves of tactical behaviour in respect of the delayed service of her English petition on the husband. He questions why she has chosen to instruct F. & Co. at all, when there are countless other solicitors ‘out there’ who could just as well act for her and when she has always known full well that Mrs. F used to act for the husband. He also maintains that there is a clear tactical element in F. & Co. having accepted instructions from the wife as early as March 2009 without asking the husband’s consent or even telling him, such that he did not find out that they were acting until the beginning of June 2009 - some two and a half months later. Each counsel has accused the other side of ‘outrageous behaviour’, so to that extent if nothing else there can I suppose be said to be a level playing-field.[34]If, contrary to his arguments, there were to be a finding that the first requirement in Bolkiah is satisfied (a real risk of disclosure) then Mr. Howard submits that the undertakings and other arrangements offered clearly satisfy Lord Millett’s test about effective measures to ensure that no disclosure will in fact occur. I have already touched on the points: a responsible solicitor with no current recollections and aware of her duties; confidentiality undertakings by all concerned; a single individual possessed of any latent confidential information; a small number of people involved at F. & Co. all knowing their duties; and the husband’s file safely archived by G. & Co.[35]As regards Mr. Cusworth’s reliance on the above citation from Newman v. Phillips about information barriers, Mr. Howard emphasises that Clarke LJ (as he then was) in Koch added no confirmatory comment of his own to that citation, merely recording it as part of a submission made to the Court of Appeal by counsel. He also points out that in the same case (Koch) Ward LJ spoke of that part of Bryson J’s above judgment commencing ‘wordless communication’ as being something that he (Ward LJ) was “...prepared to accept for the purpose of the argument, but not entirely with conviction”. What can be said is perhaps that neither Clarke LJ nor Ward LJ went so far as to disapprove the Australian approach, but that that approach does not of course have any binding effect in this jurisdiction in any event.[36]Mr. Howard asserts the right of the wife to consult a solicitor of her choice, emphasising the court’s warning in several of the authorities of the need to be cautious against acting too readily to restrain a litigant’s free exercise of such choice. Tuckey LJ said in Koch Shipping:
“...I think there is a danger inherent in the intensity of the adversarial process of courts being persuaded that a risk exists when, if one stands back a little, that risk is no more than fanciful or theoretical. I advocate a robust view with this in mind so as to ensure that the line is sensibly drawn”; and, in Skjevesland, Arden LJ said: “...a judge should not too readily accede to an application by a party to remove the advocate [here solicitor] for the other party. It is obvious that such an objection can be used for purely tactical reasons and will inevitably cause inconvenience and delay in the proceedings.”
[37]Last, Mr. Howard has drawn my attention to a dicta of Neuberger J (as he then was) in the Halewood case to the effect that, where a former client establishes “only a relatively weak case” in satisfying the first hurdle in Bolkiah, then that fact can be taken into account when evaluating the sufficiency of the safeguards required to protect the confidentiality in question. Discussion and Conclusions. As regards the burden which rests on the husband[38]As to whether the husband has surmounted the first hurdle laid down in Bolkiah, I take account of the very important feature that Mrs. F. has no current recollections. I note in passing that the original claim was that she recalls ‘no information’ relating to the husband, as per F. & Co.’s letter of 19th June 2009 and Mr. A’s affidavit (above); whereas, in her own affidavit sworn very recently, she says:
“...I cannot remember any of the specific financial details of the case nor the content of any of the conversations I must have had with the husband, nor any instructions he must have given me...I have other patchy recollections, for example, I do vaguely remember how the case started off and I do vaguely remember that there was a fallout with him and I think he sacked [G. & Co.], but I cannot be sure...”
Some recollections, albeit vague and patchy, do therefore seem to have made their way back. But leaving that aside, it is well recognised in the authorities that things may happen, perhaps unexpectedly, which reawaken subconscious memories. We have all had such experience of retrieving information unexpectedly after some trigger. Neuberger J recognised as much in Halewood when he said:
“...I have not overlooked the fact that [the former solicitor] says that he cannot recall anything specific in relation to the [particular litigation]. There is no challenge to his good faith, but memories can change and matters could come back to his mind particularly if he was prompted by hearing or seeing what was going on in [his new firm’s] offices….”; and he repeated Lightman J’s comment in Re a firm of solicitors, that: “...common sense requires recognition that confidential information acquired by a solicitor will remain in the mind of the solicitor or be susceptible of being triggered as a recollection after a lapse after a period of time.”
It should be noted that those comments of Neuberger J in Halewood were made against a factual background of a period of only some twenty months (not nine years, as here) between the former solicitor acting for the claimants and then, by moving firms, effectively acting against them. Nevertheless, Neuberger J required physical separation, which was there practicable, whereby the former solicitor had to work in a different building from colleagues now acting against his (the solicitor’s) former client.[39]I refer also in this respect to Young v. Robson Rhodes, where (in a case about confidential information held by a small well-defined group) Laddie J had to consider whether it was necessary for the claimant to be able to suggest a specific scenario in which some harmful inadvertent disclosure might in the future take place. He concluded not and that it would be:
“...unreasonable to ask [the claimant’s counsel] to describe an example of a damaging inadvertent leak. It is impossible to tell in advance how mistakes might be made. The approach to be adopted by the court is to ensure that, even if there are mistakes, no additional risk of damage is inflicted upon the former client. Such damaging mistakes can occur when potential disclosers and disclosees are in regular and in working contact with one another. The fact that there are fewer potential disclosers here than in Prince Jefri’s case may alter the scale of the risk, but does not mean that it is fanciful.”
[40]In Davies v. Davies the question was whether a solicitor could act for a husband when, some seven years previously, he (the solicitor) had had one and only one consultation with the wife. As the case never came on in contested form on that point (since the wife withdrew her objection and the issue became one of costs), it is arguable that what was said in the Court of Appeal was ‘obiter’; and for the purpose of this judgment I will so regard it. In the process however of deciding whether Johnson J had erred at first instance in the costs order which he made, the Court of Appeal expressed itself satisfied that he had been bound to assess the substantive merits of the wife’s application (to have the solicitor stopped from acting for the husband) and had also been justified in holding that he would have restrained it. Stephen Brown P cited part of the judgment of Johnson J, who had said below:
“...the question I have to ask myself is not whether a wife petitioner, in the emotional context of what seems likely to be bitterly contested proceedings, should perceive it as being unfair that a solicitor previously consulted by her seven years ago should now be acting against her. The question is whether, looked at objectively, there is or may be an actual likelihood that knowledge acquired by the solicitor in 1991 may in some way be to the advantage of the respondent husband now in 1998... In my judgment [the question] is whether there is here not merely a perception on the part of the wife, but in the mind of a reasonable bystander an actual likelihood of prejudice... I hold that there is a real as opposed to a fanciful risk of information in the mind of [the solicitor] having some impact upon his conduct of the case.” “...the memory is a complex phenomenon. Recall may be conscious or subconscious. That has been recognised in copyright cases where courts recognise that conscious and unconscious copying can take place...”
[41]I am very conscious of the long period of time between Mrs. F’s last acting for the husband and F. & Co. starting to act for the wife. Nine years is greatly longer than has arisen in any reported case, the nearest being Davies itself at seven years. Some of the authorities are measured in months only. Nevertheless, Mrs. F acted for the husband for a relatively long period (a year), which is longer than in some of the authorities. During that time she was likely to have been privy to privileged / confidential information and she would also have got to know his sensitivities and feelings, his likely reactions, the sort of person he is and how to handle him, particularly in the light of their social relationship. I am not thereby saying that family law is in some special category in this respect, as Mr Cusworth more or less submitted. Such a possible approach was considered by Wilson J (as he then was) in his judgment in Re L (a care case on unusual facts, involving cohabitation between the Local Authority’s Solicitor and the Solicitor for others of the parties with whom the complaining mother did not get on). Wilson J observed that in Re T and A (children: risk of disclosure) 2000 1FLR 859 Ward LJ had:
“...rejected the father’s argument that the principles in Bolkiah’s case should be softened in family proceedings so as to bar a solicitor from appearing for one party where another party, for whom that solicitor had previously acted, objected in good faith. He [Ward LJ] there said: ‘...it seems to me therefore that, apart from the need for all concerned in litigation in this field to tread sensitively, nothing is so unique about the role of the advocates in the work in which they are engaged as would call for a different rule, if indeed it is even open to us to distinguish Bolkiah...’...” “...Re T and A is therefore clear authority to the effect that, where in care proceedings a firm of solicitors has previously represented another party, objection must be based upon more than a bona fide feeling of injustice. It can be sustained only by reference to a factual inquiry into whether the solicitor has access to relevant confidential information.”
[42]So, although one must tread sensitively, the fact that this is a family law ‘money’ case does not involve some special ‘family gloss’ on the law as laid down by the House of Lords in Bolkiah. There will, after all, be some commercial cases where the parties are just as emotionally involved in the outcome, to paraphrase Mr. Cusworth’s submission, as is so often seen in family cases. Nevertheless, I must here pay regard to the fact that in very similar proceedings between the same parties over matrimonial money, Mrs. F was privy to the husband’s having very probably disclosed to her his attitudes to business and matters of finance. So, on an overview of all the factors, I have come to the conclusion that the husband has satisfied the burden of proof on him that Mrs. F is in possession of information (in the ‘triggerable’ sense, discussed above) which is confidential to him, which will or may be relevant to the present litigation and which would or could compromise the fairness of the process if it leaked out. Further, I am of the view that this risk, although modest, is a real one. It is clearly not substantial, but it does not need to be. It is, I find, a risk which is not merely fanciful nor theoretical. As regards the burden which now rests on the wife / on F. & Co.[43]The next question then is whether the wife/F. & Co. have put forward proposals to show that there is no risk, if information comes back to Mrs. F in some way, that it would or might leak out to the small team in F. & Co. acting for the wife in the current litigation. I have set out above the undertakings which are on offer. I will assume too, that each member of Mr. A’s team would be prepared to give undertakings not to communicate with Mrs. F about the case, if so requested. Mr. Howard says that the proposed arrangements effectively eliminate all risk of any seepage of information from Mrs. F to anyone on Mr. A’s team even if, contrary to his submissions, confidential information came back to her mind. He stresses that none of the files belong to or are at F. & Co.; that there are no secretaries common to both firms; and that the only solicitor at G. & Co. at the relevant time (apart from Mrs. F herself) was Mr. J, who then had and now has nothing to do with the case. It is right to note that Mr. J has in fact attended this hearing, together with Mr. A and another solicitor at F. & Co. and that, as the wife’s Costs Estimate shows, Mr. J has charged for an hour’s perusing. However, I am assured and I accept that this is only in respect of this particular application and does not mean that Mr. J has worked on the substance of the case. Last, Mr. Howard submits, as I have said, that as this is a small firm the proper conduct of everyone is easy to police. Mrs. F knows she must not disclose anything to members of her staff which might get back to Mr. A’s team and the team know that there is only one person (not several or many) with whom and in front of whom they must not discuss this case.[44]Information barriers have been discussed several times in the authorities. Whilst the starting point is that without special measures “...information moves within a firm” (per Lord Millet), nevertheless there is no rule that such arrangements are insufficient to eliminate risk. It is all a matter of fact. I have considered with care the circumstances of this case and the undertakings offered, which do not propose any ‘segregation’ of Mrs. F from the remainder of the firm, this being seemingly impracticable. I have borne in mind the potentially longish period of time during which an information barrier would have to be effective (if the English court remains seised) until the financial proceedings would be likely to be determined, absent a compromise; also the closeness and regularity of the general contact which Mrs. F as a ‘hands-on’ senior partner would be likely to have with the members of her staff engaged on this case. In the result, I am not persuaded that F. & Co. have succeeded in satisfying the burden on them under Bolkiah to show that the proposed undertakings would be effective to ensure that no disclosure would occur. As the late Pumfrey J (as he then was) said at first instance in Bolkiah itself, the trouble with such arrangements is that, while they are well adapted to deal with foreseeable or deliberate disclosures of information, they are not well adapted to deal with disclosures by accident, whether inadvertent or negligent. As regards the husband’s standing back for five weeks / his acquiescence[45]In principle then I hold that the husband has made out his case and that F & Co. should not act for the wife. But this is subject to the additional issue of his alleged acquiescence and the asserted detriment to the wife between 25th June 2009 and 31st July 2009. Arguments along the line of estoppel and waiver originally raised by Mr. Howard have now been sensibly subsumed in a submission by him that the relief sought is discretionary and should be refused, as the husband sat on his rights, letting the wife incur substantial costs during those five weeks.[46]I can say immediately that I have not been persuaded that this episode of the husband’s standing back is, as submitted, probative that he is now acting purely tactically in bringing this application. This is merely a hearing on submissions, at which no oral evidence has been called and, as Longmore J said in Nick’s Sports v. Morrison, the court has to do the best it can within that limitation to assess the various issues. Nothing else which the husband has done strikes me as tactical. I do not accept it can fairly be described as ‘tactical’ that he would prefer to litigate in Spain, if he is or may be right in saying that the parties are domiciled and habitually resident there. Nor do I consider it to be counter-intuitive that he would on reflection prefer that the wife were not now represented by a firm, the senior partner of which once acted as his solicitor and became a confidante of his, even a long time ago. So I regard an inference of ‘tactical conduct’ by the husband as an inference too far to be fairly drawn.[47]There being no established ‘tacticality’, the question remains how best to achieve justice and fairness regarding representation? Is the husband’s having stood back for five weeks, coupled with the costs incurred by the wife in that time, such that justice requires him to be denied the remedy which he would otherwise have achieved? Or can any injustice which the wife would suffer by losing the services of F. & Co. be otherwise remedied? I bear in mind that the wife will by now have developed a client/solicitor relationship and a rapport with F. & Co., although I am not privy to how much of this would have developed in the five weeks that the husband stood back, as compared with how much would have developed(i) prior to his even finding out that F. & Co. were acting for the wife, or(ii) since he issued his notice of application for them to cease doing so. The view I have reached is that the husband’s standing back was not for so long, nor the detriment to the wife so great, that it can only be fairly remedied through an exercise of discretion denying him the remedy sought. I consider that the wife can reasonably be expected to remake a solicitor / client relationship and rapport with any of the many other solicitors who specialise in this type of work and that the detriment to her from what has happened is remediable in terms of money.[48]I raised contingently with both leading counsel during submissions how I might fairly deal with this issue, if that should turn out to be my final view. There is no doubt that the wife did spend money on costs during the five weeks concerned, although some of it was on foreign lawyers, which would have been spent anyway, and some of it was on drafting documentation which will continue to be used (and so not wasted) even without F. & Co. representing the wife. To mitigate any injustice or sense of injustice to the wife caused by the husband’s standing back, I could either(i) direct the asserted costs of £47,500 to be formally assessed, or(ii) reserve the whole issue to the ancillary relief Judge, if England remains the seised court, or(iii) take a broad view myself as to the fairest terms upon which the husband should be placed in order to be granted injunctive relief. Given the extent of the costs already spent on this case (the wife’s alone are about £155,000 and the parties are not yet beyond preliminary skirmishes), I consider I should adopt the third option, the broad approach. What I propose to direct is that the husband may have his injunction restraining F. & Co. from acting for the wife on terms that he pays the wife £32,500 to cover such costs as she may have ‘wasted’ over the five weeks that he dithered. Either party may ask the ancillary relief Judge (if England does remain the relevant jurisdiction) to re-visit that figure if, but only if, he or she contends that it can be shown to be seriously unfair. If Spain should become the acting jurisdiction, my broad brush figure will have to stand.[49]Two postscripts: first, I have been referred to the Rules of the Solicitors’ Regulation Authority, in particular to Rules 4.03 and 4.05, together with notes 40 to 44(g). Having considered them, I do not think that they sufficiently impact upon this application as to require them to be set out and expressly discussed here. Second, I record with admiration the fact that both leading counsel have succeeded in conducting the case without a reference to Article 8 of the ECHR and the wife’s right to respect for her choice of a solicitor as an aspect of respect for her private life. Should it be necessary to do so, I record that the interference caused by my decision with the exercise of her free choice constitutes, in my judgment, the least possible intervention as is necessary to achieve the reasonable protection of the rights of the husband, as Mrs. F’s former client. _____________________

order

Young v. Robson Rhodes [1999] 3 All ER 524 (Laddie J); Davies v. Davies [2001] FLR 39 (CA); Newman v. Phillips [1999] WASC 171, [1999] Western Australian Reports 309 (Steytler J); Halewood International Limited v. Addleshaw Booth & Co. [2000] Lloyds Law Reports 298 CH (Neuberger J); Nick’s Sports v. AJ Morrison (unreported) 3rd February 2000 (Longmore J in the Construction and Technology Court); Re L (minors: care proceedings: solicitors) [2001] 1 WLR 100 (Wilson J); Koch Shipping Inc. v. Richards Butler [2002] EWCA Civ. 1280 (CA); and Skjevesland v. Geveran Trading Co. Limited [2002] EWCA Civ. 1567 (CA).

Cited in 3 later judgments