Petition: Kae Alexandra Tinto Or Murray For Interdict
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2019] CSOH 21 |
| Date | 07 March 2019 |
| Docket Number | P968/18 |
| Court | Court of Session |
| Published date | 07 March 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 21
P968/18
OPINION OF LORD BRAILSFORD
In the petition
KAE ALEXANDRA TINTO or MURRAY
Petitioner
for interdict
Petitioner: McBrearty QC, Innes; SKO Family Law
Respondent: Duncan QC, Byrne; Turcan Connell
7 March 2019
[1] The petitioner seeks to interdict a firm of solicitors (“TC”) from acting in divorce
proceedings she has raised against her husband, Sir David Murray (“SDM”).
Background
[2] The background to this petition can be stated briefly. The petitioner and SDM were
married in 2011. Prior to their marriage they entered into a pre-nuptial agreement
regulating financial affairs in the event of the marriage terminating in divorce. TC are a
Scottish firm of solicitors specialising in private client work. They were formed in 1997 and
since that time had acted on behalf of SDM in connection with his private affairs. They acted
for SDM in the negotiation and preparation of the pre-nuptial agreement. The petitioner
was represented in the negotiation and preparation of the pre-nuptial agreement by a
2
solicitor, Noel Ferry then Head of Family Law in another firm of solicitors, Maclay Murray
& Spens. In 2013 Mr Ferry joined TC initially as a senior associate and from April 2015 as a
partner working in that firm’s Glasgow office in the field of family law. Since joining TC
Mr Ferry has not acted for nor had any dealings with the petitioner. Since her marriage to
SDM the petitioner has on a number of occasions instructed and obtained advice from
another partner of TC, Mr Peter Littlefield. Mr Littlefield is a partner dealing primarily with
trust and tax matters for private clients. It was in this area of expertise that the petitioner
sought the advice of Mr Littlefield. On 22 March 2018 the petitioner and SDM separated.
The petitioner instigated divorce proceedings in this court against SDM by summons
signeted on 22 May 2018. The petitioner was represented in the divorce proceedings by a
firm of solicitors specialising in family law, SKO. Defences were lodged on behalf of SDM
on 19 June. He was represented by TC. In the divorce proceedings the petitioner seeks to
set aside the pre-nuptial agreement and, further, makes financial claims both in relation to
capital and aliment. That action proceeded uneventfully throughout the summer of 2018.
By interlocutor of 12 July a proof date was fixed for 5 February 2019 and seven subsequent
days. At a scheduled by order case management hearing on 11 September the petitioner
raised the issue of potential disclosure of information confidential to her by TC. On
14 September the petitioner sought to introduce by way of Minute the contention that it was
inappropriate for TC to continue to act in the divorce. The Minute, as a step in the divorce
proceedings, was directed at SDM albeit that it was formally intimated to TC for any interest
they may have. I declined to allow the Minute to be received on grounds of competency.
Subsequently the present petition was presented on 18 September.
[3] The petition raises issue of the appropriateness of TC continuing to act in the divorce
proceedings when they are contended to possess information confidential to the petitioner.
3
The information claimed to be confidential falls into two broad categories. First, information
in the nature of “retained knowledge”, that is information for which there are no documents
but which depends on the memory of a person. In the circumstances of the present matter
the petitioner contends that Mr Ferry has retained knowledge in relation to the petitioner’s
affairs arising from his involvement on her behalf, albeit when employed by a different firm
of solicitors, in the preparation and negotiation of the pre-nuptial agreement. The second
category is information of a confidential nature said to be contained in two files compiled by
Mr Littlefield when giving private client advice to the petitioner during the tenure of her
marriage. It is to be noted that although the hard copies of these files were passed by TC to
SKO in implement of a mandate in June 2018, TC retain within their IT system electronic
copies of the files.
[4] Procedurally, as a result of concerns expressed by the petitioner, an arrangement was
made, with the approval of the court, to allow counsel instructed on behalf of TC and a
named partner of that firm to consider the two files said to contain information confidential
to the petitioner. The partner permitted to have access to the files had no previous
involvement in the affairs of the petitioner or SDM. He had not, and going forward will not,
take any professional role in the divorce proceedings. I should also note that the partner
and assistant in TC conducting the divorce proceedings on behalf of SDM took no part, and
were indeed excluded, from any consideration and involvement in the present petition. The
hard copies of the two files said to contain the confidential information were produced in a
sealed envelope to the court prior to a hearing on the petition and answers lodged thereto
which took place on 2 November when I considered the issue of confidentiality. With the
permission of both parties the envelope was opened at the commencement of the hearing on
2 November and thereafter has been considered by myself. Orders under section 11 of the
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