G v G [2015] EWHC 1512 (Fam)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No FD09D05089

[2015] EWHC 1512 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/04/2015

Before

MRS JUSTICE ROBERTS

Between

GApplicant

GRespondent

Mr Martin Pointer QC and Mr Simon Webster (instructed by Messrs Farrer and Co) for Applicant

Mr Andrew Green QC, Mr Tom Hickman and Mr Richard Sear (instructed by Messrs Pinsent Masons) for Respondent

Hearing Hearing date: Friday 24th April 2015

Judgment

Mrs Justice Roberts :

[1]There are before me two applications made by a former wife in financial remedy proceedings. They were issued on 4and 25 March 2015. By her applications, she seeks orders which would prevent her former husband’s legal team (leading and junior counsel, and solicitors) from continuing to act for him at a forthcoming hearing in July this year before Moor J. She is also seeking redaction of part of his evidence in the proceedings and an injunction to prevent him from relying upon the use in that hearing of material in respect of which she claims legal advice privilege (‘LAP’).

[2]Her former husband, for his part, has issued his own application dated 15 April 2015. He seeks a declaration that the material which his former wife seeks to exclude is not privileged and can be referred to as evidence within the substantive proceedings.

[3]Before dealing with the merits of these applications and the legal arguments which I heard over the course of a full day, I shall need to set out the background and the circumstances in which the current dispute arises.

[4]Mrs G has been represented in these proceedings by Mr Martin Pointer QC and Mr Simon Webster. Mr Andrew Green QC with Mr Tom Hickman and Mr Richard Sear have appeared on behalf of Mr G. Mr Sear is junior counsel in the ongoing matrimonial proceedings. Until recently, he was being led by Miss Deborah Bangay QC (‘DBQC’). She has now withdrawn from the case in circumstances to which I will come. Mr Sear’s position remains vulnerable in the context of the injunctive relief which is sought by Mrs G. For present purposes, it will be convenient to refer to the parties as ‘H’ and ‘W’. Each should know that I intend no disrespect to either in adopting this form of shorthand. B. The background

[5]H and W were married to one another in 1996 after a lengthy period of cohabitation. Their relationship endured for some 22 years during the course of which three children were born to this couple. In the context of divorce proceedings which were issued in 2009, they were able to resolve all issues arising in the context of the pending ancillary relief proceedings (as they were then known). On 1 June 2010, Deputy District Judge Marco approved the terms of a consent order which provided W with a comprehensive financial award on the basis of a clean break between the parties. The global wealth available for distribution between the parties at that time was said to be in the region of £15.7 million. W’s settlement was worth slightly less than half of that sum.

[6]Some four years later, on 23 July 2014, W issued a notice seeking permission to appeal out of time against the consent order alleging material non-disclosure on the part of H at the time of the 2010 financial negotiations. In essence, her case in the substantive proceedings (which are due to be heard by Moor J between 6 and 8 July this year) is that she did not know until May 2014 that H (as opposed to their three children) was the primary beneficiary of two family trusts. At the heart of her case in relation to the alleged non-disclosure lie the central allegations that(a) he failed to disclose the existence of two trusts;

(b) she was unaware at the time of the agreement which underpinned the consent order that the trusts had recently received payments amounting to just over £4 million; and

[7]H denies the non-disclosure allegations. His case is that there is no substance whatsoever to W’s allegations and he has filed detailed written evidence setting out his case in relation to precisely what he disclosed and when. Further, and of central importance to the matters which I have to decide, he says that W has failed to act promptly in bringing her appeal. Her allegedly inexcusable delay in progressing matters is another ground on which he relies in his opposition to any attempt to re-open these matters now. The material which lies at the heart of the application before me is an email which suggests that W was, or may have been, alive to potential issues of non-disclosure as long ago as September 2012 yet she failed to take any action until almost two years later. Leaving aside the factual dispute in relation to his disclosure in the early part of 2010, the delay in itself is another reason why he says her present attempt to overturn the 2010 consent order should fail in limine.

[8]The central issue which I have to decide is whether or not the contents of an email dated 20 September 2012 which was sent by DBQC to Julian Ribet, a partner with Levison Meltzer Pigott LLP (solicitors) (‘LMP’) were confidential and/or privileged. W’s case is that the contents of the email were (and remain) privileged and this court can and should prevent the use of the material at the forthcoming appeal hearing and require H’s entire legal team (who are now privy to that information) to withdraw from the case. H says no such privilege exists and he is entitled to use the email and the information within it in support of his case before Moor J in July 2015.

[9]During the course of extensive legal argument, I have been referred to a significant number of authorities on the general principles which I should apply in my determination of the dispute between the parties in relation to the admissibility of this evidence. On behalf of H, Mr Green maintains that W’s current application represents an extensive and wholly unwarranted extension of the general law in this area and that I should be cautious before expanding the scope of well-established legal principles. It seems to me that, before turning to consider the law, the first step I must undertake is an examination of the facts and, in particular, those facts which gave rise to the creation of the email in respect of which privilege and/or confidentiality is asserted on behalf of W. C. What happened during September 2012 ?

[10]In her statement in support of her applications to this court dated 17 March 2015, W states that she only became aware of H’s alleged non-disclosure at the end of May 2014 when she saw a letter sent to her matrimonial solicitors (Farrer & Co) by another firm of solicitors acting for the trustees of the settlements (Speechly Bircham LLP). That letter is dated 29 May 2014. She says that in 2012 (she does not say when), some two years or more after the consent order was approved by the court, she wanted legal advice. She does not descend into any more detail than that in relation to the nature of the advice she was seeking or the reasons which had prompted her to seek such advice.

[11]She states that in September 2012 she had spoken to a friend of hers called Debra Spurway. It seems that these two ladies had been friends for some 35 years having known each other from their school days. Miss Spurway had also known H for some 17 years and had introduced him to the accountant he employed after the sale of one of his companies. Thus, whilst a close friend of W’s, she was also familiar with the family and knew something about H’s business affairs. Miss Spurway’s evidence suggests that she had spoken with W ‘a few times’ during mid-September 2012. She considered her conversations with W to be ‘absolutely private and confidential’. She does not provide any further detail as to the substance or subject matter of those conversations but she had been keen to provide W with help ‘as her friend’. Miss Spurway appears to have spoken to another friend of hers called Patricia Ledwith who had told her that she knew DBQC (whom she described as ‘a top family lawyer’). Having spoken again with W, Miss Spurway asked Miss Ledwith to put her in touch with DBQC.

[12]There is nothing further in the papers to assist me in relation to the substance of the conversation which DBQC and Miss Ledwith must have had within the next 24 hours but it is clear that they did indeed speak. I know that because Miss Spurway tells me that Miss Ledwith arranged for her to speak to DBQC. Miss Spurway’s evidence is that the conversation which took place between them was short. It appears to be common ground that DBQC and Miss Spurway did not know one another and had no previous communications prior to the introduction effected by Miss Ledwith. Miss Spurway tells me in her statement dated 1 April 2015 that she considered her conversation with DBQC to be ‘wholly private and confidential’. She says that she mentioned during the course of that short conversation the name of the family company and that she ‘discussed sensitive and private matters relating to [W] and her family which I understood Miss Bangay QC would not share with anyone else’. Pausing there, and on the assumption that a court were to find this to be an accurate representation of what transpired during the course of that conversation, it would follow that unless she received contrary instructions, DBQC herself would not have been at liberty to divulge to any third party (including any solicitor whom W might subsequently instruct) the factual content of that discussion.

[13]The only details which I know about the short conversation between Miss Spurway and DBQC appear in paragraph 7 of Miss Spurway’s statement. It is clear that there was some discussion about the possibility of DBQC representing W because Miss Spurway recollects her saying that she herself did not accept instructions on the basis of the direct access scheme. She gave Miss Spurway the name of a solicitor she might contact with a view to his arranging an appointment to see W. That solicitor was Mr Ribet of LMP. It is quite clear that his name was being put forward in this context as no more than a recommendation at this stage because Miss Spurway’s understanding was that ‘if [W] instructed Mr Ribet then he could instruct Miss Bangay QC on [W’s] behalf’.

[14]Thus, at this stage of the analysis, it is clear that (a) there was a short telephone conversation between Miss Spurway and DBQC during the course of which (per Miss Spurway) ‘sensitive and private matters relating to W were discussed’ and that her understanding was that those matters were not to be divulged to any third party. Equally clear to me is the fact that at this point in the time line, DBQC had not been formally instructed to act on behalf of W. There is nothing in the evidence thus far to suggest that she offered any legal advice during the course of the short conversation she had with Miss Spurway. In my view, the fact that she is alleged to have invited Miss Spurway at the conclusion of their conversation to ‘keep me in touch with what’s happening’ (paragraph 7 of Miss Spurway’s statement) offers no further assistance one way or the other. It might just as easily be interpreted as a common courtesy as a follow up to her recommendation of Mr Ribet. There is no doubt, however, that what she did was to provide Miss Spurway with Mr Ribet’s contact details with a view to any further steps being initiated once W (if she chose) had met with Mr Ribet and decided to engage his services for the purposes of securing legal advice. Miss Spurway tells me in her statement that, having emailed Mr Ribet’s details to W, she had a subsequent conversation on the telephone with W to tell her what DBQC had said during the course of their own conversation. I have no further details and Miss Spurway does not suggest that she was relaying to her friend what was, in substance, legal advice. It is at this point that Miss Spurway’s involvement in the line of communication comes to an end.

[15]Having spoken to Miss Spurway on either the evening of 19 September or the early morning of 20 September 2012, DBQC sent a short email to Mr Ribet. It was sent at 08:54 (‘RE: ‘Poss new case’) and its substance is recorded below :- ‘[Mrs G] – may call you re non performance of a Consent Order and ? poss non-disclosure’.

[16]That email was acknowledged by Mr Ribet three minutes later at 08:57.

[17]W did indeed make contact with Mr Ribet in the weeks following that email exchange. She tells me that she took that firm’s advice in late 2012 but she does not waive privilege in respect of that advice. There is nothing in the evidence before me to suggest that DBQC had any further involvement in the case at that stage, although, if she did, that information is privileged. D. Events leading up to W’s current applications for injunctive relief

[18]Whatever may or may not have been the substance of the advice which W received from Mr Ribet, it is accepted that nothing further happened in terms of the current litigation until she issued her notice of appeal on 23 July 2014, some 22 months after Miss Spurway’s initial conversation with DBQC.

[19]By that time, H’s previous solicitors in the 2010 matrimonial proceedings (Burges Salmon) considered themselves to be conflicted as a result of the fact that a representative of that firm might be required to give evidence in relation to the allegations of non-disclosure which underpinned the proposed appeal. On 11 September 2014, H instructed new solicitors, Pinsent Masons, and Mr Michael Pulford took over the conduct of the matter on his behalf. Prior to Burges Salmon’s withdrawal, and quite by coincidence, DBQC and Mr Sear had been instructed to advise H in consultation. Apparently in ignorance of the fact that she had previously been approached by Miss Spurway on W’s behalf, DBQC had accepted instructions to act for H with Mr Sear as her junior. When it became apparent that Burges Salmon’s position as a firm was compromised because someone from that firm might be required to appear as a witness in the appeal hearing, DBQC suggested that LMP might act for H and the name of another partner in that firm (Mr Simon Pigott) was put forward. It appears from Mr Pulford’s witness statement that, although Mr Pigott had been due to attend the consultation with H and his leading and junior counsel, he withdrew prior to its scheduled date (10 September 2014) on the basis that neither he nor his firm could act for H. Mr Pulford’s understanding is that Mr Ribet (Mr Pigott’s partner) subsequently made contact with DBQC to remind her that she had introduced W to LMP and they were thereby conflicted.

[20]This information prompted a search by DBQC of her historical emails and, as a result, she discovered the email she had sent to Mr Ribet on 20 September 2012. It is this evidence which persuades me on the balance of probabilities that DBQC is unlikely to have had any further involvement in this case as far as W’s instructions were concerned once, in 2012, she had recommended Mr Ribet as an appropriate point of contact in terms of any future legal advice. Had she been formally engaged to represent W and/or attended a consultation, it is difficult to see how she might have accepted instructions from Burges Salmon to act on behalf of H. Whilst I have no direct evidence apart from those facts and matters within Mr Pulford’s knowledge and understanding, Mr Ribet’s telephone conversation with her in September 2014 suggests her involvement did not extend beyond anything more than her initial recommendation of his firm.

[21]Having discovered the existence of the September 2012 email, DBQC sought legal advice from leading counsel in respect of her own professional duties in these circumstances. I know not what advice she received. On 15 September 2014, she sent a copy of her email to Mr Ribet to Mr Pulford. He tells me that, after discussion with his firm’s SRA compliance partners, he took steps to ensure that a ‘Chinese wall’ was erected within his firm’s electronic central filing system so as to ensure that the LMP email was not viewed by anyone at the firm other than himself.

[22]On 13 October 2014 there was a directions hearing before Moor J on which occasion Mr Sear was instructed to represent H. Counsel had not been told about the detail or content of the LMP email although it appears that he was aware that a document had been discovered over which W might seek to assert a claim to privilege and/or confidentiality. Various directions were made as to the filing of evidence and W’s application for permission to appeal was listed with a time estimate of 3 days with the substantive appeal to follow in the event that permission is granted. As I have said, that hearing will take place in July this year. E. Circumstances in which the LMP email was disclosed to H

[23]Prior to that hearing, Mr Pulford had once again contacted his ‘risk and compliance’ team to consider the next steps. By that stage, active consideration was being given to the parallel duties which the firm owed to H, as a client. A meeting was set up with H and his accountant on 23 September 2014. H was informed by Mr Pulford that his firm held a document which was potentially relevant to the current appeal proceedings but that he was not at liberty to disclose its contents. A course was agreed whereby a copy would be sent to W’s solicitors, Farrer & Co, who would be invited to consider the next steps prior to any disclosure to H. Whilst naturally frustrated by this turn of events, I am told that H agreed to this course.

[24]I have seen a copy of the letter which was sent to W’s solicitors by Pinsent Mason on 30 September 2014. It was written by Miss Kate Francis, Mr Pulford’s assistant. Having explained the background to the firm’s instruction by H in substitution for Burges Salmon, the letter recorded the fact that the email sent to Mr Ribet in September 2012 by DBQC had not been disclosed to H. In relation to DBQC’s role in 2012, the letter records that :

‘She [DBQC] now recalls, although [she] was unaware at the time of the conference on 10 September 2014 that on 19 September 2012 she was contacted by PC, a contact seeking to speak to her about a “friend in need”. Following that conversation with Mr C [sic] she contacted Julian Ribet at LMP on 20 September 2012 to advise him that: “[Mrs G]- may call you re non performance of a Consent Order and ? poss non-disclosure”.’

[25]Copies of those emails were sent to W’s solicitors with that letter and they were made aware that H had not yet seen their content. In circumstances which will now be readily apparent, the letter continued, ‘We consider these documents as potentially highly relevant to your client’s application for permission to appeal out of time. Please confirm she agrees they are disclosed to our client and to the court and provide your client’s explanation regarding their contents. Irrespective of your client’s consent or otherwise, although we have not yet disclosed these documents to our client, given their potentially highly relevant nature, we intend to do so 7 days from the date of this letter, at 4.00pm on 6 October 2014 unless your client takes steps to prevent us from doing so.’

[26]Thus, the marker had been clearly put down that, absent an application for injunctive relief, the contents of DBQC’s email exchange Mr Ribet would be disclosed to H on the afternoon of 6 October 2014, a week hence.

[27]Farrer & Co did not respond to that letter until 6 October. After setting out a number of concerns, they said this :- ‘The privilege belongs to our client and it is up to our client as to whether or not she wishes to waive that privilege. She has not done so. Therefore neither you nor Ms Bangay QC are entitled to use that information, to pass it on, or to draw the court’s attention to it. Should you choose to do so, you will have to deal with the consequences for breaching legal professional privilege, and we do not see how you could continue to act.’

[28]A response from H’s solicitors was forthcoming on 8 October 2014. It records the fact that, in the absence of W having indicated any intention to take steps to prevent disclosure to H, a copy of the emails had already been provided to him. Other than to assert a bare claim to privilege, there had been nothing in Farrer & Co’s letter to explain why the email was to be regarded as privileged. Amongst a number of requests for information was a request for production of LMP’s file. Mr Green has since confirmed that it is no part of H’s case before me that the file should be produced. He recognises that to be privileged material and merely seeks on behalf of his client to admit in evidence at the permission hearing before Moor J in July this year the content of the email, and to ask questions of W and (if necessary) her supporting witnesses in relation to her state of knowledge about potential non-disclosure issues in September 2012.

[29]Thus, we reached a position where, by 8 October 2014 and prior to the directions hearing before Moor J on 13 October, H was well aware of the contents of the email communications which took place in September 2012. He has referred to the existence of those emails and their content in his witness statement dated 23 January 2015. It was not until 3 March this year, some five months later, that the issue of privilege was re-engaged by the parties’ respective legal teams. On 3 March 2015, the day before the issue of her first application, W’s solicitors wrote to Pinsent Masons and recorded the fact that they had now met with Mr Pointer in consultation. Whilst his name did not appear in that letter, he has confirmed that he did indeed see his client in this context at that time. I collect the date of that consultation (26 February 2015) from W’s statement dated 17 March 2015. The letter written by Farrer & Co repeats W’s contention that the information relayed to DBQC during the telephone conversation with Miss Spurway was confidential. Further, they allege that the information which was then relayed to Mr Ribet who was subsequently instructed as W’s legal advisor, was privileged. In the absence of any waiver by W, the use of the email and its disclosure to H was an attempted breach of that privilege. The issue had now become magnified by the reliance by H upon that information in his written evidence to the court.

[30]In setting out the case as to why the legal team should now withdraw and the evidence relied on by H redacted from his statement, reliance was placed squarely on the principles set out in Prince Jefri Bolkiah v KPMG

[1999] 2 AC 222

and the cases which followed that decision of the House of Lords.

[31]I shall come on to deal with the law shortly. The final documents which have relevance to this issue are W’s replies to written questions put to her by H’s solicitors on 1 April 2015.

[32]The matters of substance to emerge from those replies are these, although W continues to assert privilege in relation to instruction of LMP and any other solicitors.(i) She continues to assert that she was unaware of H’s alleged non-disclosure prior to May 2014.

(ii) She had only one conversation with Miss Spurway in September 2012 and that conversation (the length of which she cannot recall) took place on 17 September 2012.

(iii) She was driving in her car at the time and no one else was present.

(iv) She was not present when Miss Spurway spoke to DBQC and has no direct knowledge of what was said.

(v) She is unwilling to provide any details about her concerns and/or why she was seeking legal advice at that time or any further particulars of her conversation with Miss Spurway because these matters are privileged.

[33]W has filed a fifth statement in these proceedings. It is dated 31 March 2015. In that statement she refers to the fact that she has deliberately refrained from including in her earlier statements the substance of her conversation with Miss Spurway in September 2012. She continues to maintain that this conversation was confidential and any information passed on to DBQC by Miss Spurway and from DBQC to Mr Ribet was similarly impressed with that confidence. In order to ‘cure’ or remedy the absence of any specific details, she has provided a summary of that conversation in a sealed brown envelope lodged with the court which she invites me to read despite the fact that she continues to maintain her privilege and confidentiality over that material. I indicated at an early stage of these proceedings that I was not minded to accede to any request which might be made of me by Mr Pointer and Mr Webster to read that material. Whilst I accept that I am entitled to look at that information, I take the view that it would be wholly inconsistent with my obligations to reach a conclusion in these matters on the basis of a fair and transparent hearing in which neither party had any forensic or other advantage over the other. It would have placed Mr Green and his junior counsel, Mr Hickman and Mr Sear, in an impossible position. Further, it might well have resulted in my having to produce a redacted version of my judgment if and insofar as it might have included reference to the ‘brown envelope’ material. The lawyers and the parties in this case are fully entitled to know the reasons underpinning any decision I might reach. That would prove impossible if I were to have read material which I regarded to be relevant, the contents of which were unknown to H and his team. Transparency and openness lie at the very heart of fairness and judicial impartiality. Whilst there may be circumstances in which other outside interests and public policy considerations might entitle a judge to read material which is not disclosed to the other side (for example, in situations regarding public interest immunity applications), this is not such a case. As I shall explain when dealing with the law, the authorities to which I have been referred make it quite clear that there is an obligation upon an applicant who seeks to rely upon LAP to include in his or her evidence as much detail as possible in his or her evidence in support precisely in order to avoid this sort of situation arising.

[34]I have therefore proceeded on the basis of the evidence which is before me in the agreed bundle of documents and from the foot of the legal argument which I heard. F. My observations and findings of fact based upon the evidence presented in the court bundle

[35]Before turning to the law, it seems to me that by this stage we have reached a situation where the facts as I find them to be on the balance of probabilities can be stated as follows :-a. The conversation between W and Miss Spurway

(i) According to W’s own recollection and prior to Miss Spurway’s conversation with DBQC on 19 or 20 September 2012, W had spoken to Miss Spurway on one occasion in the context of her wish to seek legal advice. She was driving alone in her car at the time of this conversation. [B/3:38][B/7:54]

(ii) At some point during its course, Miss Spurway asked W if she might speak to DBQC whose identity was then unknown to W but who had been recommended to Miss Spurway as an expert in her field of family law by a friend. That friend’s identity was entirely unknown to W at the material time and it is her evidence that she did not even know the name of Miss Spurway’s friend (who was the initial point of contact with DBQC) until the existence of the email chain of 19/20 September 2012 was disclosed to her in H’s solicitors’ letter dated 30 September 2014 : see [A/4:46].

(iii) W was subsequently informed that Miss Spurway had spoken to DBQC and had told her a number of matters about W’s (then) concerns. There is no further information or particularity as to what was said save that DBQC had sent an email to the solicitor she had recommended (whom we know to be Mr Ribet). That email refers to (a) non-performance of a consent order and (b) (perhaps) possible non-disclosure [A/4:42].

(iv) Miss Spurway reported to W that DBQC had said that she wished to be kept informed as to developments.

(v) As a result of that recommendation, on a date subsequent to 20 September 2012 (which W says was ‘late 2012’), W did establish contact with LMP to take advice.

b. The conversation between Miss Spurway and Miss Ledwith

(vi) At an unidentified point in time, Miss Ledwith had communicated to Miss Spurway in a conversation between them the fact that she knew DBQC whom she described to Miss Spurway as ‘a top family lawyer’ [B/6:50].

c. The conversation between Miss Ledwith and DBQC

(vii) Whatever information Miss Ledwith imparted to DBQC during their telephone conversation it did not come first hand from W (who did not then know of Miss Ledwith’s existence and had never spoken to her).

d. The conversation between Miss Spurway and DBQC

(viii) There is nothing in the written evidence to assist me with the precise date and time when the conversation between Miss Spurway and DBQC took place. Miss Spurway’s evidence is simply that Miss Ledwith ‘arranged for her to speak with Miss Bangay’ [B/6:50]. In particular, I do not know whether DBQC’s email sent to Mr Ribet at 08:57 on the morning of 20 September 2012 alerting him to the possibility of a call from W was sent before or after her conversation with Miss Spurway. I find that it is likely to have been after her conversation with Miss Spurway because of the reference in the latter’s written statement to DBQC’s agreement to contact Mr Ribet to let him know that W might get in touch with him. This would put their conversation at some point prior to 08:57 on 20 September 2012.

(ix) This telephone conversation was short [B/6:50].

(x) During its course, Miss Spurway referred to the name of the family company (SC) and ‘discussed matters [unidentified] which are alleged to be sensitive and private relating to W and her family’ which Miss Spurway understood DBQC would not share with anyone else (including, presumably, Mr Ribet unless and until she might be formally instructed). [B/6:50]

(xi) There is no suggestion in any of the evidence put before the court by W and/or Miss Spurway that DBQC was either asked for legal advice or gave legal advice during the course of this conversation. There is no suggestion in the email which DBQC subsequently sent to Mr Ribet on 20 September 2012 that she had given any such advice although it is clear from the reference in that email to both the possible breach of a consent order and potential issues of non-disclosure that some information had been exchanged which led her to deduce that these were possible legal issues which might need to be explored in the event of a formal instruction by W. The other alternative is that these issues were identified by Miss Spurway herself without any input at all from DBQC and the tentative nature of her succinct email to Mr Ribet was no more nor less than a reflection or reportage of what she had been told might be the subject of W’s wish to seek legal advice.

(xii) DBQC explained to Miss Spurway that she could not accept direct instructions from W (and therefore, presumably from any agent instructed on W’s behalf). She tendered Mr Ribet’s name as a solicitor whom W might wish to go to see. She appears to have explained to Miss Spurway (although it may be no more than a deduction on Miss Spurway’s part) that in the event such contact was made by W, it would then be possible for Mr Ribet to instruct DBQC on W’s behalf. G. The law

[36]Legal professional privilege (LPP) is a single integral privilege whose sub-heads are legal advice privilege (LAP) and litigation privilege : see Three Rivers District Council and Others v Governor and Company of the Bank of England (No 6)

[2004] UKHL 48

[2005] 1 AC 610

. This case concerns the first of those two sub-heads. LAP is a fundamental principle of common law which enables people effectively to seek and obtain legal advice about their rights and duties whilst guaranteeing that open and frank discussions with their lawyers will be protected from disclosure, regardless of whether or not they are involved in either current or contemplated legal proceedings. The privilege belongs to the client and not to the adviser. The protection afforded by the privilege is based upon sound policy considerations which the courts have consistently applied in appropriate circumstances :-(i) clients must be able to seek and receive legal advice if the proper administration of justice is to be maintained;

(ii) sound legal advice can only be given if the client is candid with the legal adviser; and

(iii) to ensure candour and openness, the law must guarantee that the communications between a client and legal adviser remain confidential unless the client consents to disclosure.

[37]These principles are firmly and deeply embedded in English jurisprudence : see R v Derby Magistrates’ Court, Ex p B

[1996] AC 487

at 507 to 509, the Three Rivers case (above) at 659, B v Auckland District Law Society

[2003] 2 AC 736

at 756 to 759, and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax

[2003] 1 AC 563

at 606 to 607. Their application in the context of confidential and/or privileged material produced for the purposes of matrimonial proceedings is commonplace : see, for example, L v L and H (a firm)

[2007] EWHC 140

, QB (per Tugenhat J) and Imerman v Tchenguiz and others, Imerman v Imerman

[2010] EWCA Civ 908

[2010] 2 FLR 814

[2011] 2 WLR 592

. Whilst the unauthorised use of confidential material will usually engage the court’s equitable jurisdiction which arises so as to protect the beneficiary’s privilege, the balancing exercise which is often required in the context of confidential material is not consistently applied in circumstances where the material is not only confidential but also attracts the protection of LAP. In these circumstances, there is more usually an in-built presumption that the court’s jurisdiction will be exercised so as to protect that privilege : see, for example, Goddard v Nationwide Building Society

[1987] QB 670

at 685, per Nourse LJ. It is also clear that the balancing exercise is unlikely to have a place in circumstances where the court is being asked to restrain the unauthorised use of confidential information which has been obtained by the inadvertent disclosure of privileged material during the course of litigation. That is not the case here.

[38]However, although the balancing exercise is unlikely to be conducted in circumstances where LAP is established, other factors which affect the grant of an equitable injunctive remedy may nonetheless be relevant in appropriate cases. Here, the issue of delay in issuing the application for injunctive relief (as opposed to delay in issuing the set aside application) is one of the grounds relied upon by H and by Mr Green on his behalf.

[39]In ISTIL Group v Zahoor

[2003] EWHC 165 (Ch)

[2003] 2 All ER 252

, public interest factors were engaged to justify the (rare) refusal of an injunction to protect privilege. In that case, somewhat unusual on its facts, there was correspondence between a litigant and his solicitors about an email with an unidentified third party whom the litigant believed to be assisting him in the context of his claim. He thought he could trust this individual and share confidential information with him in the hope and expectation of obtaining from him relevant information. When in due course that third party shared with the defendants to the litigation his communications with the claimant and his solicitors without their consent, it issued an application for injunctive relief to prevent the use of that material in the litigation. Lawrence Collins J accepted the court’s power in these circumstances to protect the litigant’s privilege and his right to have the documents kept confidential through the grant of an injunction. But he also observed that, even in cases where such material was incontrovertibly shown to be privileged, there could be circumstances where the court had to conduct some form of balancing exercise when weighing up whether to restrain the use of the protected material. On the facts in that case, he concluded that it would be inappropriate to grant the injunctive relief sought on the ground of the public interest in the disclosure of wrongdoing on the part of the claimant who had additionally provided misleading information to the court. No such circumstances pertain in this case.

[40]The ISTIL case was followed within 12 months by USP Strategies Plc v London General Holdings Ltd

[2004] EWHC 373 (Ch)

in which Mann J held that the starting point was that the court would normally grant relief to protect and restrain the use of material impressed with litigation privilege regardless of its relevance to the facts in issue in the main dispute between parties. At paragraph [26], he said :

“So far as I have a discretion to do otherwise, it is not to be exercised merely on the footing that if I do not exercise it, the truth is more likely to come out. There must be some other factors, such as delay, acquiescence or other equitable defences which must be sufficiently strong to override the normal, very strong principle, that privileged communications are protected from disclosure.”

[41]In Howard MacPherson v Dennis Wise

[2011] EWCA Civ 399

, at paragraph [36], the court said this :

“The balance between preserving the confidentiality of privileged communications and the risk of the Court reaching the wrong conclusion on the facts has been struck firmly in favour of the need to preserve confidentiality. As Lawrence Collins LJ says in Istil, (at [93]): ‘there is nothing in the authorities which would prevent the application of the rule that confidentiality is subject to the public interest. In this context, the emergence of the truth is not of itself a sufficient public interest. The reason why the balancing exercise is not appropriate is because the balance between privilege and the truth has already been struck in favour of the former by the establishment of the rules concerning legal professional privilege: see The Aegis Blaze [1986] 1 Lloyd’s Rep 203, 211; R v Derby Magistrates Court, ex parte B [1996] AC 487, 508’.”

[42]The Istil case was also referred to by the Court of Appeal with approval in Imerman (above) in the context of matrimonial proceedings between former (or soon to be former) spouses.

[43]Given the grounds upon which H seeks to oppose W’s substantive application to set aside the 2010 consent order (which grounds include substantial delay on W’s part in making her application), it is obvious that the contents of DBQC’s email to Mr Ribet may well be highly relevant to a determination of the facts. H’s previous solicitors have now ceased to act for him because of the potential status of the partner involved as a witness of fact in relation to his 2009/2010 (pre-consent order) disclosure. DBQC has herself now withdrawn from the case as H’s leading counsel (albeit it at a fairly late stage of these proceedings) because of her position as a possible witness of fact in relation to W’s state of knowledge in 2012. The fact she has taken that step does not establish one way or the other whether or not she will have anything useful to add to the evidential matrix of the July hearing even if she is called. Despite relevance, it is clear from the authorities to which I have referred above that the material in respect of which LAP is claimed will be excluded from the material put before the court at the substantive hearing of this matter(i) if and insofar as that material is privileged, unless

(ii) H makes out some equitable ground which might involve the court in some form of balancing exercise. W has made it clear that she does not waive the privilege which she claims for this material.

[44]On the other hand, if the material is not covered by LAP and is subject only to issues of confidentiality (to which I shall come), there is nothing to stop its admission as evidence in the case : its potential relevance is clear. As matters presently stand, there is nothing in the evidence before me to indicate one way or another whether the ‘possible non-disclosure’ referred to in the DBQC email is actually relevant to the matters which Moor J will determine in July this year. If the material is to be admitted, W may well have a perfectly valid explanation for the reason(s) why DBQC was either told during, or deduced from, the course of her short conversation with Miss Spurway that issues of possible non-disclosure might be the subject of the advice which W intended to seek. The ‘non-disclosure’ may be entirely unrelated to the matters about which she now complains. However, it is equally obvious why H may wish to explore these areas in order to establish the facts one way or another.

[45]It seems to me that the outcomes of the current applications depend essentially upon the answers as I find them to be to three separate questions which were formulated by Mr Green during the course of his closing submissions to me :-(i) Does the conversation (or conversations, if more than one) between W and Miss Spurway prior to her making contact with DBQC attract the protection of LPP (and specifically LAP) ?

(ii) Does the (admittedly, short) conversation between Miss Spurway and DBQC on 19 / 20 September 2012 attract LPP ?

(iii) Is this a case where injunctive relief should be granted to restrain the use of either confidential or privileged material ?

[46]In paragraph 35 of this judgment, I have already analysed the facts as they appear to be established in relation to the chain of communication as it developed between W’s agreement that Miss Spurway might approach DBQC and Miss Spurway’s subsequent conversations with her, all culminating in the email she sent to Mr Ribet on 20 September 2012.

[47]I turn now to the competing submissions of H and W as so ably advanced during the course of argument by Mr Pointer and Mr Green. H. Competing arguments A. Submissions made by Mr Pointer QC and Mr Webster on behalf of W

[48]The cornerstone of Mr Pointer’s submissions to me is the decision of the House of Lords in Bolkiah v KPMG

[1999] 2 AC 222

[1999] 2 WLR 215

in which Lord Millett said, at 226 E to F:

“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 information that is 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.”

[49]In this context, I was taken to the decision of the Court of Appeal in Davies v Davies

[2000] 1 FLR 39

where a wife objected to the instruction by her former husband of a solicitor who had previously been instructed by her some seven years previously. In that case, the wife withdrew her application before the court was asked to determine whether she was entitled to an injunction to debar him and thus the only live issue was costs.Mr Pointer appeared for the husband in that case when it came before the (then) President, Sir Stephen Brown P. He endorsed the passage of Lord Millett’s speech in Bolkiah (as set out above) as providing the basis of the approach which the court should take when considering the position of a solicitor or any other professional person placed in a position of being consulted by one party and later by the opposing party : see pages 46 and47.

[50]The Bolkiah principle was considered again by Bodey J some ten years later in Z v Z (Restraining Solicitors from Acting)

[2009] EWHC 3621 (Fam)

[2010] 2 FLR 132

. In that case, a husband sought an injunction to restrain his wife’s matrimonial solicitor from continuing to act for her in circumstances where he had previously engaged her services notwithstanding that the divorce had not proceeded until some seven or eight years later by which time the solicitor had become a partner in a different firm. Granting the injunction sought by the husband, Bodey J considered the principles to emerge from Bolkiah and held that there was no ‘family gloss’ to be applied to the law established in that case simply by virtue of the fact that the case involved a financial remedy or related application flowing from divorce proceedings. A party who sought to restrain by injunctive relief a solicitor or another member of his legal team from future involvement in the case had to establish :(i) that the solicitor was in possession of information that was confidential to him, to the disclosure of which he had not consented; and

(ii) that the information was or might be relevant to the new matter in which the interest of the other client was, or might be, adverse to his own. If this burden, which was not a heavy one, was discharged, the evidential burden then shifted to the defendant firm of solicitors to show that there was no risk that the information in question wold come into the possession of those now acting for the other party; this burden was a heavy one and the starting point was that unless special measures were taken, information moved within a firm. In Z v Z, the husband had failed to take any steps to protect his interests for a period of five weeks after he became aware of the facts which underpinned his application to restrain the wife’s solicitor from continuing to act. Bodey J did not consider the delay as a sufficient reason and/or failure to act on the husband’s part which should disentitle him to the relief which he sought. The order for costs which he made in the wife’s favour would enable her to remake a solicitor/client relationship with another specialist in this field of legal work.

[51]On behalf of W, Mr Pointer submits that the Bolkiah principle is of direct relevance to this case. He argues that it is not necessary for a lawyer-client relationship to be, or to have been, in existence for the jurisdiction to be invoked. The test, he says, is whether the court is satisfied on the facts that the respondent firm (or, in this case, the professional adviser approached – here, DBQC) was in possession of confidential information in respect of which the applicant had not consented to its disclosure, and that circumstances had since arisen where that firm (or professional adviser) was proposing to act for another client with an interest adverse to her own in a matter in which the information was, or might be, relevant. In this instance, the court will intervene to restrain that firm or professional adviser from so acting.

[52]It is here that Mr Pointer and Mr Green appear to part company in terms of the law. It is Mr Green’s case on behalf of H that the imparting of confidential information per se does not provide W in this case with any platform for equitable relief unless and until she is also able to establish that the information which she seeks to protect is also covered by, and subject to, LPP (and, here, more particularly LAP). In terms, Mr Green submits that confidence per se, absent the overlay of an element of LAP, could never preclude H’s lawyers from cross-examining Miss Spurway about her own conversation with W even if it did touch upon matters which W regarded as including personal or confidential information about her family and related financial matters. The essential requirement, he says, before the existence of confidential information will give rise to equitable relief flowing from the court as a protective measure is the existence of a fiduciary relationship between a client (or potential client) and his or her professional adviser (see White Book para 31.3.6). In Bolkiah, that fiduciary relationship flowed from the instructions delivered by Prince Jefri (the then chairman of an investment agency established to hold and manage assets of the Government of Brunei) to KPMG which was employed to provide forensic accounting services in the context of major litigation relating to his financial affairs. Here, the initial conversation or conversations which give rise to the confidence occurred between W and Miss Spurway. Had Miss Spurway not taken steps to initiate contact with DBQC through the intermediary of Miss Ledwith, it is inconceivable (says Mr Green) that she would not be both competent and compellable as a witness in the forthcoming hearing before Moor J. If this is right as a proposition of law, the issue then becomes the ‘chain of communication’ between the four individuals involved and an examination of whether or not, at any point during the relevant time line, W can point to the existence of a fiduciary (or client) relationship between herself and DBQC.

[53]In response to this assault upon his analysis of the law, Mr Pointer submits that I must look at the totality of the evidence as a whole and stand back from the invitation to consider each segmental analysis in terms of the relevant time line of events as they took place in September 2012. He reminds me of the principle that LPP embraces the instructions which a client gives to his or her lawyers as well as the advice which they receive. The description of a set of facts upon which a lawyer will be asked to advise can properly constitute confidential and privileged information which a court will protect. He nevertheless accepts that if the facts as I find them to be do not fall within existing legal parameters and principles, he will fail in his application for injunctive relief. In other words, he does not accept that in this case I am being asked to extend or redefine the law of privilege as it applies to clients and their professional advisers. He further accepts that I would need to find that Miss Spurway was acting as W’s agent in establishing contact with DBQC before I could find an established fiduciary relationship such as would give rise to a claim in respect of LAP.

[54]I remind myself, first, of the passage in W’s evidence which appears to encapsulate the basis of her claim for injunctive relief. She states : ‘I do not believe that [H] is or should be entitled to rely on the exchanges to which I have referred above that led to my instruction of LMP. I regarded and regard my request to Debra [Spurway] for a recommendation for representation (and its purpose) as confidential. Any transmission of that enquiry (and any information in it) to [DBQC] and to Mr Ribet was similarly private and confidential. I have at no time permitted any breach of that confidence. I do not believe that James should be entitled to use that information.’ (para 15) [B/3:39]

[55]Having recorded the fact that Miss Spurway had reported back to W that she (Miss Spurway) had ‘told her a number of matters about my then concerns’, W continues : ‘While the information that has been identified by [H] and [DBQC] thus far is quite limited, I do not know what else was relayed to her and what may emerge as this case progresses, potentially triggered by other facts and issues that may arise.’ (para 16) [B/3:39]

[56]In terms of the evidence, Mr Pointer invites me to accept that the correct analysis is this :-(i) W asked Miss Spurway for assistance and that assistance included a request for a recommendation in respect of representation.

(ii) Miss Spurway obtained a recommendation from Miss Ledwith.

(iii) Miss Spurway secured W’s agreement to allow her to speak to DBQC on her behalf. Thus, he says, there is no sensible way in which the evidence can be analysed as limiting W’s request directed to Miss Spurway as simply to secure a recommendation for legal representation. What she did was to speak to DBQC on W’s behalf having obtained that recommendation.

[57]The next (and crucial) questions seem to me to be :(i) whether or not the initial (and admittedly short) conversation between Miss Spurway and DBQC involved a specific or general request for legal advice; and, if so,

(ii) whether there is any evidence that legal advice was given on that occasion; and, in either circumstance,

(iii) whether Miss Spurway was acting throughout as W’s agent. Mr Pointer accepts that, before any issue of LPP can arise, I need to be satisfied that DBQC was asked for, or was giving, legal advice in the context of her telephone conversation with Miss Spurway.

[58]In this context, he relies on the decision of the Court of Appeal in Minter v Priest

[1929] 1KB 655

for the proposition that the privilege arises regardless of whether or not the initial discussions a potential client has with a lawyer subsequently crystallise into formal instructions to act.

[59]He rejects the submission made by Mr Green on behalf of H that I can assume it is common ground that Miss Spurway’s call was made for the purposes of securing a recommendation for a lawyer and not for the purposes of giving advice. Nevertheless, he accepts that the evidence will not support a conclusion that, during her call with Miss Spurway, DBQC gave specific advice on the merits of any claim W might have. He contends nevertheless that, by September 2012, the relationship between W and DBQC was one where she was being asked for advice and, in this context, a fiduciary relationship between them was established. Thus, I have to ask myself what is the most likely interpretation to be placed on the evidence which is currently available to me and what inferences can I properly draw from that evidence ? Agency

[60]W’s case as advanced by Mr Pointer is that Miss Spurway can properly be regarded as having acted as W’s agent throughout this chain of communication and certainly for the purposes of the initial contact with her intended legal advisers. If this is correct, it follows that DBQC was acting as some form of sub-agent for the purposes of the onward transmission of information to Mr Ribet at LMP. In their written skeleton argument, Mr Pointer and Mr Webster say this, at para 16 :- ‘So far as it is necessary to analyse the strict legal relationship of the participants in this dialogue, we suggest that Miss Spurway is properly to be regarded as W’s agent for the purposes of the initial contact with intended legal advisers. DBQC was therefore a sub-agent or the intended source of initial legal advice or both. Communications with any such intermediary attract the same privilege as if directly made.’

[61]Passmore on Privilege (3rd edition) 2013 summarises the principles of agency in this way :- ‘A communication between a client and his legal adviser need not be made directly between them in order to qualify for advice privilege. Similarly, a communication with a third partyneed not be made directly by the client or lawyer in order to come within the scope of litigation privilege. In both cases, the client or the adviser is entitled to make the communication through an agent, so long as the agent is merely a medium of communication. Sir George Jessel MR explained in Anderson v British Bank of Columbia that privilege goes: “…not merely to a communication made to the professional agent himself by the client directly, it goes to all communications made by the client to the solicitor through intermediate agents, and he is not bound to write letters through the post, or to deliver himself personally to see the solicitor; he may employ a third person to write a letter, or he may send a letter through a messenger, or he may give a verbal message to a messenger, and ask him to deliver it to the solicitor, with a view to his prosecuting his claim, or of substantiating his defence.” ’

[62]Despite its slightly anachronistic content viewed with contemporary eyes, that passage remains an accurate statement in relation to the basic principles relating to the law of agency. Taken at its highest, it seems to me that if I am looking at the whole chain of dialogue, whatever Miss Spurway’s position may have been vis à vis W, DBQC’s status as part of that initial chain on 19/20 September 2012 is far less obvious, a position which Mr Pointer appears to accept. (In para 17 of his and Mr Webster’s written skeleton, he describes her potential agency status as ‘perhaps ambiguous’.) In addition, whilst we know that Mr Ribet acknowledged DBQC’s email within minutes of receipt, there is nothing at all in the evidence to demonstrate when, after 20 September 2012, W formally instructed him to act. Her statement refers only to contact being made “in late 2012”. That could have been at any point between 21 September and 31 December 2012 and there is, as I have said, not a scintilla of evidence to suggest that there was any further communication whatsoever between DBQC and Mr Ribet and/or DBQC and W during that intervening period. Further, it appears to me to be highly unlikely that any formal instructions would have been delivered to DBQC even after W’s initial contact with Mr Ribet ‘in late 2012’. If she had been instructed formally to advise on the merits in writing or to meet with W in consultation, it is highly probable that her subsequent instruction by Burges Salmon on H’s behalf would have produced a positive conflict check within her chambers' administrative systems. We know that did not happen because it was only after she had recommended LMP as Burges Salmon’s replacement that Mr Pigott (another partner in LMP) had to decline the invitation to attend a consultation with DBQC and H on 10 September 2014. The potential conflict was revealed by LMP’s internal system and not by DBQC’s chambers’ system. This is why I have concluded that it is highly improbable that DBQC had any further involvement in the case on W’s behalf once she had sent the email to Mr Ribet on 20 September 2012. Confidentiality

[63]As he concluded his submissions to me on the law, Mr Pointer accepted that a professional relationship needs to be established on the evidence before the principles enunciated in Bolkiah are engaged. To this extent, he and Mr Green are agreed. But Mr Pointer argues that even in the absence of an established lawyer/client relationship, the provision by W of information to Miss Spurway (and by her to DBQC) was, and remained, confidential. That much is confirmed by W in her written evidence and she is supported in that contention by Miss Spurway. He and Mr Webster accept on W’s behalf that the court has power to compel the provision of confidential information if it is both relevant and admissible. However, in these circumstances, the court has a discretion whether or not to allow the information into the case and I must weigh in the scales whether, in order to dispose fairly of the proceedings, it is likely to be probative of any issue which is material to outcome in the case. Since the central issue in the forthcoming hearing in July 2015 will be whether or not H complied in full with his disclosure obligations in 2010, the email sent to Mr Ribet by DBQC in September 2012 can have no possible bearing. It does not assist one way or the other in terms of establishing whether or not W knew about the details of the two family trusts in 2012, her case being that this information was only revealed to her in 2014.

[64]Pausing there, it seems to me that this argument ignores the parallel (and not insignificant) issue of delay which H seeks to run at the forthcoming hearing before Moor J. Indeed, it seems to me be the central focus of his defence to W’s current application. Whilst his primary position is that there was no breach of his duties in relation to disclosure prior to the 2010 consent order, he will say that W has left it far too late to challengethat disclosure in any event. If she had indeed been alive to potential issues of non-disclosure in 2012 but allowed matters to rest for a further two years before taking any steps to set aside the consent order, that factor will undoubtedly be one which the learned judge will wish to consider in deciding whether to grant W the relief which she seeks. In this context, it seems to me that her state of knowledge in 2012 is likely to be highly relevant and material.

[65]In terms of the scope of the injunctive relief which he seeks, Mr Pointer submits that the landscape has changed significantly since DBQC announced her intention to withdraw from the case approximately one week before this hearing on 15 April 2015. In these circumstances, he concedes that it is open to me to frame any injunction I might make in narrower terms than that for which W was originally contending. He invites me to preclude the use of the email and require H to redact his written evidence so as to expunge any reference to it and/or the dialogue between Miss Spurway and DBQC. In these circumstances, he recognises that it would be possible for junior counsel, Mr Sear, to continue to act along with Pinsent Masons and Mr Michael Pulford. Whilst his primary position remains that the entire legal team must withdraw, the latter solution would – he accepts – be an acceptable compromise from W’s position.

[66]Finally, Mr Pointer reminds me that the fact that the emails passing between DBQC and Mr Ribet have been disclosed to H does not mean that the privilege and/or confidentiality belonging to W are now irrevocably lost. The court in these circumstances retains the power to regulate the evidence.

[67]In B v Auckland District Law Society (cited above), Lord Millett said this at paragraphs 69 and 70:

‘The Society argued that, once the documents were produced to Mr Ennor, they ceased to be privileged. Their Lordships consider that this was playing with words. It confuses the nature of the documents with the rights to which the arrangements with Mr Ennor gave rise. The documents are privileged because they were created for the purpose of giving or receiving legal advice. If they are not produced voluntarily, production cannot be compelled. If they are produced voluntarily, the right to withhold production no longer attaches to them. In that sense the privilege may be said to be lost. But they are the same documents, and it is not inappropriate to describe them as privileged. Their inherent characteristics are the same. The policy which protected them from unauthorised disclosure is the same. The cat is still a cat. It can be put back in the bag. There is another confusion also. The appellants want to recover the documents because they are privileged. But they do not rely on privilege to found their cause of action. A party who has parted with possession of documents may have a right to recover possession on any one of a number of grounds. He may reclaim them because they belong to him; or because he has a contractual right to recover then; or because they are confidential; or because he has parted with them for a limited purpose and equity will not permit the recipient to retain them once that purpose is fulfilled. In the present case the documents are both privileged and confidential, but the appellants do not rely on privilege or confidentiality to found their claim to recover them. They rely on the terms of the arrangements under which they were supplied and the limited purpose for which they permitted use to be made of them. Their case is that there is no legal basis on which the Society can retain and make use of the documents free from the limitations which Mr Lusk imposed and Mr Ennor accepted.’

B. Submissions made by Mr Green QC and Mr Hickman (with Mr Sear) on behalf of H

[68]Of the initial conversation between W and Miss Spurway, Mr Green and Mr Hickman contend that, whilst it might have been confidential as between them as friends, that alone would not justify as a matter of law the withholding of written records of the conversation. In this proposition they are supported by the House of Lords’ decision in Science Research Council v Nassé

[1980] AC 1028

at 1067-1066 per Lord Wilberforce. It follows that the confidentiality of that conversation per se would not prevent the cross-examination of either W or Miss Spurway in relation to the detail of their conversation(s). If W is to secure the water-tight protection she seeks, she must establish that the conversations she had with Miss Spurway attract LPP and that, they submit, she cannot do. They remind me that W does not state anywhere in her written statements that she specifically requested Miss Spurway (or anyone else) to speak to DBQC in order to obtain provisional advice on the way forwards or on the merits. Similarly, there is no detail – even in the broadest terms – about the ‘number of matters’ allegedly discussed with DBQC.

[69]On 6 March 2015, Moor J gave directions in relation to the filing of evidence in relation to these applications. By paragraph 1 of that order, W was required to serve a witness statement in support of her application dated 4 March 2015, together with all supporting evidence on which she intended to rely. She was also required to explain in her statement the reasons for the delay in making the application.

[70]The evidential basis for W’s applications is far from satisfactory, according to Mr Green. In material respects, the evidence of W and Miss Spurway is contradictory (even allowing for the deficiencies of memory and recall). There is no specificity whatsoever in relation to key aspects in direct contravention of previous guidance given by the courts. In West London Pipeline and Storage Ltd & Anor v Total UK Ltd & Ors [2008] 2 CLC 258, Beatson J said, at paras [53] :

‘53. Thus, affidavits claiming privilege whether sworn by the legal advisers to the party claiming privilege as is often the case, or, as in this case, by a Director of the party, should be specific enough to show something of the deponent’s analysis of the documents or, in the case of a claim to litigation privilege, the purpose for which they were created. It is desirable that they should refer to such contemporary material as it is possible to do so without making disclosure of the very matters that the claim for privilege is designed to protect….. .’

[71]Later in his judgment, when drawing together the principles to be applied from the authorities on challenges to claims to privilege, Beatson J said this at page 289 B :

‘(1) The burden of proof is on the party claiming privilege to establish it : see Matthews & Malek on Disclosure (2007) 11-46, and paragraph [50] above. A claim for privilege is an unusual claim in the sense that the party claiming privilege and that party’s legal advisers are, subject to the power in the court to inspect documents, the judges in their or their client’s cause. Because of this, the court must be particularly careful to consider how the claim for privilege is made out and affidavits should be as specific as possible without making disclosure of the very matters that the claim for privilege is designed to protect: Bank Austria Akt v Price Waterhouse; Sumitomo Corp v Credit Lyonnais Rouse Ltd (per Andrew Smith J).’

[72]I was also referred to the older authority of Wheeler v Le Marchant

(1881) 17 Ch D 675

. In that case Jessel, MR said this, at page 681: ‘… In the first place, the principle protecting confidential communications is of a very limited character. It does not protect all confidential communications which a man must necessarily make in order to obtain advice, even when needed for the protection of his life, or of his honour, or of his fortune. There are many communications which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. The communications made to a medical man whose advice is sought by a patient with respect to the probable origin of the disease as to which he is consulted, and which must necessarily be made in order to enable the medical man to advice or to prescribe for the patient, are not protected. Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected. Communications made to a friend with respect to matters of the most delicate nature, on which advice is sought with respect to a man’s honour or reputation, are not protected. Therefore it must not be supposed that there is any principle which says that every confidential communication which it is necessary to make in order to carry on the ordinary business of life is protected. The protection is of a very limited character and, in this country, is restricted to obtaining the assistance of lawyers, as regards the conduct of litigation or the rights to property….’.

[73]I was taken also to the judgment of Buller J in Wilson v Rastall 4 TR 753 (1792); 100 ER 1283. Whilst the authority now has to be seen in the context of more recent authority on the subject, the principle remains undisturbed in relation to the basis of the privilege. At page 1287, his lordship stressed that the doctrine of LPP was confined to cases of counsel, solicitor and attorney and ‘in order to raise the privilege, it must be proved that the information, which the adverse party wishes to learn, was communicated to the witness in one of those characters’. Later he said, ‘It is indeed hard in many cases to compel a friend to disclose a confidential conversation; and I should be glad if by law such evidence could be excluded. It is a subject of just indignation where persons are anxious to reveal what has been communicated to them in a confidential manner ….’.

[74]A modern restatement of the law can be collected from the decision of the Court of Appeal in R (Prudential PLC) v Special Commissioners of Income Tax

[2011] QB 669

where Lloyd LJ (with whom Mummery and Stanley Burnton LJJ agreed) reaffirmed the principle that a conversation between friends, however confidential and sensitive, does not attract LPP even if its contents relate to legal matters or concerns. The Supreme Court upheld this judgment and, in so doing, made it plain that it was for Parliament to decide whether, and in what circumstances, it might be appropriate to expand the doctrine (

[2013] 2 AC 185

at [51] to [52] (per Lord Neuberger); at [77] and [80] (per Lord Hope); at [92] (per Lord Mance); and at [96] to [98] (per Lord Reed)).

[75]In particular, Mr Green highlights the fact that W does not state in her written evidence that she requested Miss Spurway to speak to DBQC (or anyone else) on her behalf. Whilst she may have been aware that Miss Spurway subsequently spoke to DBQC (‘I understand that she then made contact with [DBQC]’ [B/3:38]) and told her ‘a number of matters’ about her concerns, she never says in terms that she authorized Miss Spurway to approach a lawyer on her behalf in order to seek legal advice. In these circumstances, says Mr Green, the submission relied upon by Mr Pointer and Mr Webster in their written skeleton argument in relation to the nature of the confidential information in this case cannot stand. In paragraph 14.b. and c., Mr Pointer and Mr Webster say this:

‘b. W confidentially requested Debra Spurway to communicate with a silk of the latter’s acquaintance; to explain the nature of the problem; and to elicit from that silk advice as to how W should proceed. c. In fact the silk in question (DBQC) did not give advice on the merits but rather: i. identified a solicitor, Julian Ribet, who she said should act; ii. then engaged in an e-mail exchange with Ribet, and iii. recorded her plan or intention that she should continue to be involved in at least future dialogue concerning the case.’

[76]Pausing there, I am by no means persuaded that the evidence in this case will support that analysis of the facts. There is nothing in the evidence of either W or Miss Spurway which demonstrates that Miss Spurway was acquainted with DBQC prior to their short conversation in September 2012. The inference which I can draw is that the latter’s name was only made known to Miss Spurway by Miss Ledwith who facilitated the conversation by providing DBQC’s contact details at some point after she had sent her the email on 19 September 2012 at 15:29. Further, there is nothing in paragraphs 4 to 8 of Miss Spurway’s statement which supports the submission made on behalf of W that Miss Spurway had been asked by her to ‘explain the nature of the problem’ as a direct precursor to ‘elicit[ing] from that silk as to how W should proceed’. It seems to me that what DBQC did during the course of that short conversation was the following :- i. she told Miss Spurway that she was unable to accept instructions from W directly; ii. she passed on Mr Ribet’s name as a solicitor (by implication, one whom she would recommend as someone whom W might wish to go to see); iii. she agreed to make contact with Mr Ribet to alert him to the fact that a lady called Mrs G might get in touch with him.

[77]It seems to me to be implicit in what DBQC said to Miss Spurway on that occasion that she was not in a position to give legal advice unless and until she was formally instructed by a solicitor, whether that be Mr Ribet or someone else. As to the remark which DBQC is alleged to have made at the conclusion of that telephone call (‘keep me in touch with what is happening’ or words to that effect), it seems to me that statement can more likely be interpreted as an expression on DBQC’s part in relation to a willingness to assist further in the event of a formal instruction to act. Having conveyed to W DBQC’s recommendation of Mr Ribet, Miss Spurway accepts that her involvement in the matter came to an end. As she says, it was for W to take matters forward as she saw fit. We know from the written evidence that W did indeed contact Mr Ribet at some later stage, although we do not know when save that it was at some point in late 2012.

[78]In essence, H’s case in opposition to the recusal application as articulated by Mr Green can be encapsulated under these heads :- i. The burden of proof is on W since it is she who is asserting a claim for LPP. As such, it is incumbent upon her to provide as much detail as possible about her claim without disclosing the information in respect of which privilege is claimed. Since the email in question is already before the court and its contents known to all parties and legal advisers, her ability to be specific in her evidence in support of the recusal application is not as constrained as might otherwise be the case. There is no sensible argument that LPP applies to the conversation between W and Miss Spurway and she should therefore have been candid about what was discussed between them. In all the circumstances, she has failed to discharge the evidential burden placed upon her. ii. The doctrine of LPP remains narrowly confined, is clear and consistent in its ambit and its boundaries can only be extended in very exception circumstances : see R (Prudential PLC) v Special Commissioners of Income Tax (cited above). iii. In bringing her current application, W is nevertheless seeking to extend the boundaries of the doctrine in three respects :(a) the logic of her case is that LPP applies to her conversations with Miss Spurway who must be taken to be part of the ‘chain of communication’. Yet neither were lawyers, they were simply friends;

(b) W asks the court to find that the doctrine of LPP will cover an approach by a person to a lawyer for a recommendation, as opposed to a request for specific legal advice;

(c) W’s entire case is predicated upon an extension of the doctrine of LPP to circumstances where she herself does not directly approach a lawyer but makes a simple request of a friend to do so on her behalf (the ‘agent of communication’ point). iv. If and insofar as W’s case as advanced by Mr Pointer and Mr Webster is based upon confidentiality per se without the existence of a professional relationship as part of the equation, is it misconceived as a matter of law. W can only get her case ‘off the ground’ if she can establish the existence of LPP. Mere confidentiality in a conversation or document will not provide the grounds for the relief she seeks. There must be a fiduciary relationship of some sort before a duty of confidence arises (with the consequent engagement of the Bolkiah principle) so as to open the door to the grant of some form of injunctive relief. I. Discussion and conclusions

[79]I have already considered much of the evidence in this case in the context of my analysis of the parties’ competing submissions on the law. However, it seems to me to be convenient at this point to return to the three questions which I identified in paragraph 45 of my judgment. They were these :- (i) Does the conversation (or conversations, if more than one) between W and Miss Spurway prior to her making contact with DBQC attract the protection of LPP (and specifically LAP) ?

[80]Was W, in the context of her conversation(s) with Miss Spurway, giving instructions, or authorising her friend, to seek from DBQC(i) a recommendation for a lawyer, and/or

(ii) legal advice generally and/or in relation to the way forward in terms of any potential claim she might be advised to bring ? If so, was W’s conversation with Miss Spurway, and the ‘number of matters discussed’, to form the description of the case or set of facts from the basis of which DBQC was being asked to advise ?

[81]Having considered carefully the contents of the statements prepared by both W and Miss Spurway, I can find no evidential basis for finding that there was ever a request or authorisation made or given by W to Miss Spurway to seek legal advice from DBQC. I am satisfied that W understood that Miss Spurway was going to approach DBQC with a view to securing a recommendation as to who might act on her behalf in the event that she were to dispense with the services of the lawyers who had been advising her throughout the 2010 proceedings. It is clear that Miss Spurway was able to secure through information passed to her by Miss Ledwith the name of ‘a top family lawyer’. No doubt that description (or words to that effect) was conveyed to W by Miss Spurway in the context of her securing W’s authorisation to speak to DBQC on her friend’s behalf. Whatever the nature of the ‘sensitive and private matters’ which were discussed on that occasion, it is clear that DBQC explained to Miss Spurway at some point during their short conversation that she could not accept instructions directly from W (and thus could not give advice).

[82]Miss Spurway confirms in her statement that she understood that DBQC would not in any event share the content of whatever was discussed with any other third party. Inevitably, it seems to me, there must have been some preliminary discussion between them to inform the content of DBQC’s subsequent email to Mr Ribet. I know not whether the reference in that email to ‘.. non performance of a Consent Order and ? poss non-disclosure’ was a deduction made by DBQC from the content of her conversation with Miss Spurway or whether these were the words used by W’s friend. In either event, having provided Mr Ribet with a ‘heads up’ on the possibility that W might make contact, DBQC ceased to have any further involvement in the case prior W’s instruction of Mr Ribet in ‘late 2012’. I have already explained in paragraph 62 my reasons for concluding that she had no further involvement on behalf of W after his instruction and prior to her subsequent instruction by Pinsent Masons LLP on behalf of H.

[83]Thus, I have reached a clear conclusion that, in answer to the question posed above, the conversation between W and Miss Spurway (or conversations, if there was more than one) cannot on any view be said to attract the protection of LPP (and specifically LAP). These were simply conversations between friends. During the course of one of those conversations, W learnt that Miss Spurway had been able (through assistance from a friend of hers, unknown to W) to identify a ‘top family lawyer’ with whom contact had been established through the good offices of this friend. W accepted her friend’s offer to speak to this lawyer with a view, as I find, to securing a recommendation as to whom she might go to for professional advice. I can find no basis whatsoever for a finding that she specifically authorised her friend to secure that advice from DBQC on her behalf. (ii) Does the (admittedly, short) conversation between Miss Spurway and DBQC on 19 / 20 September 2012 attract LPP ?

[84]It follows from my conclusions in relation to the first question that the approach made by Miss Spurway to DBQC was directed towards securing assistance for W in terms of a recommendation as to who might assist her friend to take these matters forward. Had Miss Spurway intended to pursue the conversation beyond the point of securing a recommendation, she was stopped firmly in her tracks by DBQC who made it plain that she could not accept W’s instructions (and thus, in my view, could not give advice) other than through formal instructions from a solicitor. I am satisfied that there is nothing in the material put before me which establishes that W herself authorised Miss Spurway to act as a conduit or agent for the purposes of a specific request for legal advice or, upon the receipt of any such advice, for onward transmission back to her. All that W said was that she was happy for Miss Spurway to speak to DBQC on her behalf. She provides no evidence which would come close to establishing on the balance of probabilities that Miss Spurway was being instructed as an agent of communication to relay information on her behalf to a lawyer. As is stated in paragraph 1.51 of The Law of Privilege (2nd edition) edited by Bankim Thanki QC, ‘If you ask your lawyer for advice about your love life, this will clearly not be privileged. But even if he is consulted about the law, privilege will not arise if a lawyer is consulted on a social rather than a professional basis. While a formal retainer is not necessary, there are limits. Buttonholing your lawyer neighbour for free advice at a barbeque is unlikely to attract privilege, even if the subject matter is entirely legal. …. The fact that an individual happens to be a lawyer will not cloak all communications with him with privilege unless he is consulted professionally in his capacity as a lawyer.’

[85]It seems to me that this passage is entirely analogous to the position in which DBQC found herself when she took the telephone call from Miss Spurway on 19 or 20 September 2012. There is no issue at all but that Miss Spurway was entirely unknown to DBQC

[86]Thus, I have reached the conclusion that at no stage of the time line was there a formal relationship between DBQC and Miss Spurway (as agent for W) and/or between DBQC and W of professional legal adviser. DBQC was very clear to Miss Spurway that this relationship could not be achieved unless and until she received formal instructions. At no point during that short conversation was she acting in a professional capacity. Equally, I do not accept that Minter v Priest (cited above) affords W any assistance in these circumstances.

[87]In Minter v Priest, the Court of Appeal explained that the confidential relationship between a solicitor and client is established from the moment when the solicitor invites that prospective client to tell him about matters on which he seeks advice and which are within the scope of that solicitor’s particular expertise. It matters not whether that solicitor has by that stage been formally engaged by the prospective client. The House of Lords approved that test and explained that “the contemplated relationship … of solicitor and client … was sufficient” (per Lord Buckmaster at 588, above).

[88]This situation is not on all fours with Minter v Priest because, as I find, W was never in a relationship with DBQC as a contemplated client of a professional legal adviser. The facts will simply not support that analysis at this point of the time line. DBQC’s rejection of her ability to assist unless and until she received formal instructions to act does not, in my view, place her in the position of a prospective adviser to W. She gave her recommendation of Mr Ribet. W could have conducted further research about Mr Ribet’s professional credentials on his firm’s website or from any other source and decided not to instruct him. Even in circumstances where she did subsequently instruct Mr Ribet, I am satisfied that he, on her instructions, did not deliver any formal instructions to DBQC to act on W’s behalf. It is just as possible that W might have been presented with a number of different barristers’ names by Mr Ribet and she might well have decided to instruct someone other than DBQC. In these circumstances and applying the law as I have referred to it above, I have reached an equally clear conclusion that the conversation between Miss Spurway and DBQC on 19 September 2012 did not, and could not on any basis be said to, attract LPP.

[89]For completeness, I should say this. I have followed a path of analysing individually the separate steps and constituent elements of the time line of events as they unfolded because it seems to me to be the logical way of approaching this matter. Had I approached my task in the manner contended for by Mr Pointer, I should have reached the same conclusions in relation to LPP in this case. Standing back and looking at matters by way of a more holistic overview of the case, I cannot find any basis for upholding W’s claim to privilege. I do not find any basis for Mr Pointer’s submission to me that DBQC might have been acting in some way as a sub-agent for the purposes of the legal advice which W wished to seek. He sought to persuade me that, if he was wrong about there being a direct prospective relationship between W and DBQC based upon the Minter v Priest principle, then DBQC can be considered as a further link in the chain between W and Mr Ribet. It seemed to me that this submission would have involved a finding by me that, because W ultimately instructed Mr Ribet on a privileged basis, any conversations between W and Miss Spurway and Miss Spurway and DBQC on the road to that instruction were somehow covered by LPP. I can find no basis for that proposition in any of the case law to which I have been taken and I take the view that, were I to accede to that line of logic, I should indeed be extending the doctrine of LPP in a wholly unprincipled and unjustified way. (iii) Is this a case where injunctive relief should be granted to restrain the use of either confidential or privileged material?

[90]It follows from what I have said above that I do not find that W is entitled to an injunction based upon privilege to restrain either the use of the email on the appeal or the continuing ability of H’s presently constituted legal team to represent him on that occasion.

[91]I turn now to consider whether she may be entitled to any form of injunctive relief based upon the alleged use of confidential material which does not attract the protection of LPP.

[92]H’s case as advanced by Mr Green is that, absent the protection of privilege, that is an end to the matter and the email comes in as evidence providing a platform from which W and Miss Spurway (together with DBQC if she is required) can be cross-examined. Mr Pointer submits that position is not a fair reflection of the law in respect of confidential documents.

[93]CPR 1998 r 31.20 covers the position where a privileged document has been inadvertently produced for inspection by mistake. In this event, the party who has inspected the document may use it or its contents only with the permission of the court : see Al-Fayed v Commissioner of Police of the Metropolis

[2002] EWCA Civ 780

per Clarke LJ. In that case, it was held that there may be many circumstances where it might be held to be inequitable or unjust to grant injunctive relief but all will depend upon the particular circumstances since the court is exercising an equitable jurisdiction. Here, it is difficult to see how it can be said that H / his legal team came into possession of the email of 20 September 2012 by mistake. It had been sent by DBQC to her new instructing solicitors once she became aware of the potential conflict when reminded of her transmission of that document by email to Mr Ribet following Mr Pigott’s non-attendance at the consultation which had been arranged on 10 September 2014.

[94]I have already referred to the ability of the matrimonial courts to restrain the use of another’s privileged material (see, for example, Imerman v Tchenguiz cited above). In the light of my finding that the email sent by DBQC to Mr Ribet was not privileged, that line of authority does not assist in determining the extent and scope of the court’s powers in relation to information which is confidential but which does not attract LPP in any of its guises. Mr Pointer submits that there is a residual discretion in the court to restrain the use of confidential material even in the absence of LPP. This much is clear, he says, from the decision in B v Auckland District Law Society (cited above). Whilst that case concerned documents which were both privileged and confidential, Lord Millett explained that recovery of documents on the basis of the court’s equitable jurisdiction can be advanced on a number of grounds, including the fact that they were confidential (see paragraph 67 above).

[95]Mr Pointer further points to the judgment of Lord Wilberforce in Science Research Council v Nassé (cited above). That case concerned discrimination proceedings brought by a female employee who maintained that she had been passed over for promotion on the basis of her gender rather than on any consideration of her ability to perform. In the course of litigation, her employer, whose routine system of operation included annual detailed assessments on every employee, agreed to produce the reports referable to the claimant but not in relation to the two employees who were successful in their bid for promotion. The tribunal had initially ordered disclosure. One of the successful candidates objected to his own report being disclosed to a third party on the basis he himself had not seen the report. He was supported in the Court of Appeal by the employer who argued that real harm could arise in the field of employment if its confidential system of assessing its employers was opened up to third party disclosure. The appeals were allowed and the disclosure orders made by the tribunal below reversed. The House of Lords dismissed the subsequent appeal from that decision. The headnote reads as follows :- ‘(1) that, while no principle of public interest immunity protected such confidential documents and they were not immune from discovery by reason of confidentiality alone, the tribunal, in the free exercise of its discretion to order discovery, should have regard to the fact that they were confidential and that discovery would be a breach of confidence, so that, accordingly, relevance alone, though a necessary ingredient, did not provide an automatic test for ordering discovery, the ultimate test being whether discovery was necessary for fairly disposing of the proceedings and, in order to decide whether it was necessary, the tribunal should inspect the documents, considering whether special measures such as “covering up” or hearing in camera should be adopted ….’.

[96]The protective measures referred to above in the context of the decision maker pre-reading the confidential material does not, in my view, require me to have regard to the contents of the W’s ‘sealed brown envelope’ for the purposes of determining whether or not an injunction should flow to protect whatever confidential material might be contained within it. The ‘protective measures’ referred to in Nassé were clearly aimed at protecting the confidential interests of third parties who had no locus, nor claims to assert or defend, in the litigation between Miss Nassé and her former employer. I have already referred in paragraph 33 of my judgment to what I perceive to be the inherent unfairness and injustice to H in pursuing this course and nothing in the judgments of the House of Lords persuades me that I should revisit those conclusions. As Lord Wilberforce said at page 1066 of his judgment, ‘4. The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.’

[97]Mr Green responds to that submission by saying that the decision of the Privy Council in the Auckland case did not involve a situation where the documents in contention had been created by, or were in the possession of, the party seeking to claim privilege. He further submits that there was no discussion at all in Auckland about the decision of the Court of Appeal in Guinness Peat Properties Ltd and Another v Fitzroy Robinson Partnership

[1987] 1 WLR 1027

. In that case, a privileged letter had been mistakenly included in a file of documents disclosed by the defendant for which privilege was not claimed. The documents had been inspected by the solicitors acting for the plaintiffs before the mistake was discovered. The Court of Appeal decided that it would have been obvious to the plaintiffs’ solicitors that the letter had been included by mistake. In these circumstances, notwithstanding the general rule that once a document had been inspected, it was too late to claim privilege, the court had power to intervene for the protection of the mistaken party by the grant of an injunction in the exercise of its equitable jurisdiction. At page 1046 B, Slade LJ remarked, obiter, that there may possibly be other exceptions to the general rule although in the Guinness Peat case, the facts did not require any further exploration of this area of law.

[98]Mr Green also took me to various passages in The Law of Privilege (2nd edition) edited by Bankim Thanki QC. I have already referred to this leading text book earlier in my judgment. At paragraph 5.106, and in the context of restraining the use of privileged or confidential documents, it is suggested that it might be possible for a party to whom privilege belongs to invoke the court’s equitable jurisdiction as a sword rather than a shield to demand the return of the document or restrain the use of a particular document or the information contained within it. In Goddard v Nationwide Building Society (cited above), at page 685, Nourse LJ noted that, although the equitable jurisdiction is of much wider application than the privilege rule, it cannot be invoked to prevent disclosure of confidential communications seen by the other side except where the documents are protected by privilege.

[99]I have already decided that DBQC’s email of 20 September 2012 does not attract the protection of LPP. Even if I am wrong about that (which I do not believe I am), I nevertheless have to consider whether W is entitled to some form of equitable relief on the basis that her communications with Miss Spurway and Miss Spurway’s communications with DBQC were regarded by the two friends as confidential. On the basis of my review of the authorities (above), I am minded to consider the position in relation to injunctive relief on the basis of a hypothetical acceptance of Mr Pointer’s submission that there remains in the court a residual discretion to prevent the use of confidential material even in circumstances where a claim for LPP is not made out.

[100]I accept, self-evidently, that relevance alone, whilst a necessary ingredient, does not provide the answer. The court retains a discretion even in circumstances where a document is clearly relevant. Mr Green has confirmed, as I have already said, that H has no intention of seeking to invade the privilege of LMP’s file insofar as it relates to W’s instruction of that firm in late 2012. Mr Pointer seeks to persuade me that, if he is wrong about LPP attaching to W’s conversations with Miss Spurway and that lady’s conversations with DBQC, I should consider in the balance whether, and how far, the contents of these conversations are likely to assist Moor J in his determination of the issues which will be ventilated at the forthcoming hearing in July this year. He points to the issue being W’s state of knowledge about H’s beneficial interest in the trusts in 2014. He says that there is no evidence that she had that information before that date. He says that there is nothing in the confidential information which is likely to advance the case one way or another as to W’s actual knowledge in 2012. Thus, he concludes, there is a real issue as to how far the confidential information can be considered as necessary for the purposes of disposing of the appeal.

[101]I am ignoring for these purposes the fact that H now knows about this information. It seems to me that the law is clear : the cat can be put back into the bag if this is necessary and that end can be achieved by the grant of an appropriate injunction.

[102]However, I am by no means persuaded that Moor J (or any other judge who decides the outcome of W’s pending appeal) will find no useful assistance in hearing evidence about W’s state of knowledge in 2012 in relation to issues arising in her mind then as to possible non-disclosure on H’s part. In his witness statement dated 23 January 2015, he sets out his case in relation to W’s appeal. He says this :

‘14. I invite the Court to find specifically that W has dishonestly suppressed relevant, material evidence as to the state of her knowledge as of late 2012. I believe that, triggered by the publicity earlier in the year given to the completion of the [TTP] deal, W decided in 2012 – having entered into the consent order in full knowledge of the existence and assets of the trusts and their shares in [T] in 2010 – that she was no longer satisfied with its terms. ……. 16. Julia knew in 2012 (having regard to the conversations she had with my older brother, [M]…, that the assets of the [H] Trust and the [E] Trust had increased as a result of the final payments in respect of the [TP] deal to which I make reference below. As a result, I believe she has deliberately delayed making her application until now, when the [TP] payments have all been paid out into the trusts and she has sought to manufacture a case of ignorance.’

[103]W’s current application for injunctive relief was issued after service upon her of this evidence. In reaching my conclusions, I am not placing any reliance upon W’s delay in issuing her application of 4 March 2015. A period of some weeks elapsed before she was able to secure a date for a consultation with Mr Pointer who was out of the country for part of that period. As Bodey J made clear in Z v Z (cited above), a delay of five weeks on the husband’s part in that case was not considered to be fatal to his application for injunctive relief given the absence of any ‘tacticality’ on his part. W was entitled to seek advice from leading counsel of her choice and, given his own reputation and the demand for his services, it does not surprise me that Mr Pointer was unable to make himself available until a date some weeks after H’s evidence had been served upon W. The delay does not seem to me to have been motivated in any sense by tactics on her part.

[104]As I said in paragraph 66 of my judgment, if W had indeed been alive to potential issues of non-disclosure in 2012 but allowed matters to rest for a further two years before taking any steps to set aside the consent order, that factor will undoubtedly be one which the learned judge will wish to consider in deciding whether to grant W the relief which she seeks. In this context, it seems to me that her state of knowledge in 2012 is likely to be highly relevant and material.

[105]In the circumstances, I have decided that notwithstanding the absence of any privilege in DBQC’s email of 20 September 2012, there are no overriding circumstances which would justify the grant of injunctive relief on the basis of confidentiality per se to restrain the use of that document or the information contained within it at the forthcoming hearing before Moor J in July 2015. Whether or not I have jurisdiction to grant the declaratory relief which H seeks in his cross-application dated 15 April 2015 (the email and any record of it and the conversations between W / Miss Spurling / DBQC can be adduced as evidence) seems to me to be subsidiary to the principal point in issue. I have found as a fact that there is no privilege attaching to either the document itself (i.e. the email dated 20 September 2012) or the conversations which informed the content of that email. In the circumstances, I dismiss W’s applications dated 4 and 25 March 2015 in respect of injunctive relief which might otherwise prevent either of Mr Sear and/or Pinsent Masons LLP from continuing to act for H. It is no longer necessary for me to determine whether DBQC should be precluded from acting, she having withdrawn from the case on 15 April 2015. I decline to make any orders requiring H to redact any part of his witness statement dated 23 January 2015 and I make no orders in respect of injunctive relief concerning the correspondence passing between H’s and W’s solicitors insofar as it relates to the use of confidential information.

[106]It seems to me that the next step is for H’s legal team to be shown the statement made by W which is presently contained in the ‘sealed brown envelope’. Mr Green tells me in paragraph 8 of his skeleton argument that she has accepted that, if the material is not privileged, H should be provided with her written ‘summary’ of the conversation she had with Miss Spurway. That may enable both sides to take a view as to the way forward. As I have already said, I have not read this material and it may very well be that W has a complete answer to H’s allegations as I have set them out in paragraph 102 of my judgment.

[107]I would hope that all other matters can be agreed in terms of drawing an order. If other issues remain (including costs, which I suspect may follow the event in this case), I shall deal with them as the parties wish. I would hope that any further representations can be dealt with on the basis of short written submissions.

G v G [2015] EWHC 1512 (Fam)

Cited in 2 later judgments