Napier and Another v Pressdram Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Sullivan,Lord Justice Hughes |
| Judgment Date | 19 May 2009 |
| Neutral Citation | [2009] EWCA Civ 443 |
| Date | 19 May 2009 |
| Docket Number | Case No: A2/2009/0206 |
| Court | Court of Appeal (Civil Division) |
[2009] EWCA Civ 443
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Mr Justice Eady
ON APPEAL FROM HIGH COURT QUEEN'S BENCH DIVISON
Lord Justice Hughes
Lord Justice Toulson and
Lord Justice Sullivan
Case No: A2/2009/0206
Mr James Price QC (instructed by Messrs Carter-Ruck) for the Appellants/Claimants
Ms Heather Rogers QC and Anthony Hudson (instructed by Messrs Davenport Lyons) for the Respondent/Defendant
Hearing date: 26 March 2009
Lord Justice Toulson:
This is an appeal from the refusal by Eady J to grant an injunction preventing Private Eye from publishing information (a) about the outcome of a complaint made to the Law Society against the appellants by a former client and (b) about an Ombudsman's report regarding the Law Society's handling of the complaint. The injunction was sought on grounds of confidentiality.
Eady J held that there was no duty of confidentiality owed to the appellants by either the complainant or the publishers of Private Eye, and therefore the appellants had not satisfied the test for an interim restraint order provided by s12(3) of the Human Rights Act 1998, as interpreted by the House of Lords in Cream Holdings Limited v Banerjee [2004] UKHL 44, [2005] 1 AC 253. Eady J also said, obiter, that he would probably not have held that any duty of confidentiality (if otherwise established) would have been defeated by a public interest defence. The appellants seek to challenge the judge's decision on the primary issue. The respondent has served a notice seeking to uphold his judgment on the additional ground of public interest.
The application for permission to appeal was adjourned by Richards LJ to an oral hearing on notice to the respondent, with the appeal to follow immediately if permission were granted. He also ordered that anonymity was to be preserved in the listing of the case, and that the hearing was to start as a hearing in private. The matter proceeded before us as if it were a full appeal hearing and I would formally grant permission to appeal. After some discussion we were persuaded by counsel for both parties that the entire hearing of the appeal should be in private on the ground that there was otherwise a real risk that the purpose of the appeal would be defeated before it was concluded.
The complaint against the solicitor
The first appellant is a solicitor and the senior partner of the second appellant. I will refer to them, as did the judge, as the solicitor and the firm. The complainant is a former Hong Kong barrister.
I take the following summary of the background from the judgment of Eady J:
“3. The facts giving rise to the complaints which have been made about the solicitor and the firm go back quite a long way and are fairly complex. It is nonetheless necessary to attempt to summarise them so that the context of the present application can be properly understood. There was litigation in Hong Kong in the early 1990s, in which two subsidiaries of the Exxon Corporation sued the complainant, a former lawyer within that jurisdiction, over allegations of breach of confidence by him in respect of information obtained when acting on their behalf in his professional capacity. They had dispensed with his services and he was later suspended by the relevant professional body.
4. The solicitor and his firm came into the matter in 1996 when they acted for the complainant, on a pro bono basis, for the purposes of an appeal to the Privy Council against a judgment of the Hong Kong Court of Appeal. That appeal succeeded, as a result of which the matter was remitted to Hong Kong for reconsideration. Although it is not relevant for present purposes, the reconsideration by the Court of Appeal led to a similar outcome as on the first occasion.
5. The complaint against the claimants was not made until late 2003. It was based upon the fact that the firm had merged at or around the time of the Privy Council appeal, as a result of which some work was taken on for Esso Petroleum UK, which is another subsidiary of the Exxon Corporation (as were the corporations which had sued the complainant in Hong Kong). The work done in England for Esso Petroleum UK was carried out by a different partner.”
Principle 15.01 of the Guide to the Professional Conduct of Solicitors, as it then was, provided:
“A solicitor or a firm of solicitors should not accept instructions to act for two or more clients where there is a conflict or a significant risk of conflict between the interests of those clients.”
The essence of the complainant's initial complaint was that the solicitor acted for him in circumstances where his interest conflicted with those of another client of the firm. He alleged that the firm's relationship with Esso led to the solicitor conducting the complainant's case in a way which was detrimental to the complainant and beneficial to Exxon and its wholly owned subsidiaries who were in litigation with him. The essence of the solicitor's defence was that there was no conflict of interest or significant risk of a conflict of interest. In response, the complainant alleged that this was a false and deceitful defence. He also made other allegations of dishonesty against the solicitor and the firm.
Outcome of the complaint
On 20 January 2005 an adjudication panel of the Law Society decided on consideration of the papers that there had been a breach of principle 15.01, but that there was no real evidence that it had affected the conduct of the complainant's case. It decided that there was insufficient evidence to support any of the remaining allegations which went to the honesty of the solicitor, and it resolved to take no further action in relation to them. It did not consider that the breach of principle 15.01 warranted referral of the solicitor's conduct to the Solicitors Disciplinary Tribunal and it imposed a reprimand for the breach.
The solicitor and the complainant both asked for a review of the decision. On 21 July 2005 the appeal panel rejected the solicitor's application. It concluded that, although there was insufficient evidence of an actual conflict between the interests of Esso UK and the complainant, there was a significant risk of such a conflict. The appeal panel stood over consideration of the complainant's request for a review pending further investigation.
On 29 March 2007 the adjudication panel made a further decision rejecting allegations of dishonesty made by the complainant against the solicitor and directed that no further complaints or referrals by the complainant in respect of his retainer of the firm would be entertained. On 28 June 2007 the appeal panel upheld the decision of the adjudication panel and confirmed that no further time or expense would be devoted to the determination of the complainant's concerns about the firm.
On 5 July 2007 the complainant wrote a letter of complaint to the Legal Services Ombudsman, appointed under s21 of the Courts and Legal Services Act 1990 (“CLSA 1990”). Under s22(8) of that Act the Ombudsman may arrange for the Scottish Ombudsman to investigate an allegation relating to a complaint made to a professional body in England and Wales. That was done in the present case because the solicitor held a position of prominence in the Law Society, as mentioned below. The functions and powers of the Scottish Legal Services Ombudsman were transferred to the Scottish Legal Complaints Commission (“SLCC”) on 1 October 2008.
On 11 December 2008 the SLCC issued its report in the form of an opinion, which was highly critical of various aspects of the way in which the Law Society had handled the complaint. It considered that the findings and sanction in respect of the conflict of interest complaint could not be regarded as sufficiently sound. It accepted that the circumstances did not fall within the classic formulation of a conflict of interest, because the matters in which the firm acted for Esso were unrelated to the litigation in which it acted for the complainant. However, it said that it had difficulty in respect of the panel's conclusion that the breach of the conflict rules was (as the SLCC summarised it) “little more than a technical breach” and considered that this conclusion had been reached without due consideration of all the issues. The nature of the conflict of interest, if there was one, arose because of the nature of the clients involved, the litigation involved and the relative size of the respective clients. It considered that the Law Society had failed to see the complainant's conflict of interest complaint in the round and recommended that the matter be reinvestigated. The SLCC was also critical of the way in which the Law Society dealt with the complainant's allegation of lack of honesty in the solicitor's responses to the Law Society. It made no specific recommendation in relation to that issue, but said that it might require to be revisited in the light of any new evidence in the course of the re-investigation of the conflict of interest complaint. On other aspects of the complaints made by him the SLCC did not consider that there was any need for re-investigation.
On 10 March 2009 (after Eady J's judgment) the Solicitors Regulation Authority (“SRA”) notified the SLCC and interested parties that it would reconsider what sanction ought to be imposed on the solicitor for having acted in breach of principle 15.01 by acting for the complainant in...
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