PQR and Another v Pressdam Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 16 January 2009 |
| Neutral Citation | [2009] EWHC 39 (QB) |
| Docket Number | Case No: HQ09X00032 |
| Court | Queen's Bench Division |
| Date | 16 January 2009 |
[2009] EWHC 39 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ09X00032
James Price QC (instructed by Carter-Ruck) for the Claimants
Heather Rogers QC and Anthony Hudson (instructed by Davenport Lyons) for the Defendant
Michael McLaren QC (instructed by Bevan Brittan LLP) for the Solicitors Regulation Authority
Hearing date: 13 January 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Eady:
On 13 January 2009 I heard an application in private by Mr James Price QC on behalf of PQR (“the Solicitor”) and STU (“the Firm”) for an injunction to restrain publication in the magazine Private Eye of information from what was described as a “confidential Opinion” dated 11 December 2008 from the Scottish Legal Complaints Commission (“SLCC”), sometimes referred to as the “Ombudsman”. The Opinion concerned the processing by the Law Society, within this jurisdiction, of a complaint concerning the Claimants. The involvement of the SLCC came about following a reference under the provisions of s.22(8) of the Courts and Legal Services Act 1990 (“CLSA”) for the reason that the equivalent Ombudsman in England happens to know the Solicitor. The claim is put fairly and squarely on the basis of breach of confidence. Defamation is not relied upon.
There was already in place an order for anonymity of the Claimants and this has so far been maintained. It was agreed that in the light of the judgment the questions of privacy and anonymity would, if appropriate, be revisited.
The facts giving rise to the various 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.
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.
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. In the light of this information, the question was raised whether or not the Solicitor should have declined to act for the complainant because of a potential conflict of interest. Although it does not directly arise before me, emphasis has been placed by Mr Price on what he calls the “complete disconnection between parties and subject-matter”. Because the matter may have to be re-considered by the Law Society in England, via the Solicitors Regulation Authority (“SRA”), the matter could well be re-argued de novo.
If so, Mr Price has indicated that reliance would be placed upon the facts that the corporations which had sued the complainant in Hong Kong were completely different from that for which the Firm acted in England; that the subject-matter of the two lawsuits was unconnected; and that the work was handled by different partners within the Firm.
It would be argued, therefore, that there was in fact no conflict of interest – even potential.
In accordance with the procedure then applying, a Law Society Adjudication Panel concluded on 20 January 2005 that there had been a breach of Principle 15–01 (relating to potential conflicts of interest) and decided to reprimand the Solicitor in this respect. This was an internal reprimand; that is to say, it was not published generally at the time, but only to the parties concerned. A few months later, on 21 July 2005, an Appeal Panel upheld the original conclusion.
Mr Price has drawn attention to the fact that the SLCC Opinion of 11 December 2008, at paragraph 6.2, refers to the Adjudication Panel's conclusion that there had been “little more than a technical breach”. That is not a matter on which it would be appropriate for me to make any comment. It may well be that the SRA, in the light of the SLCC's recommendations, will investigate the original allegations afresh and re-evaluate the Solicitor's conduct.
There has been some dispute between the parties as to the extent of the relief claimed and it is appropriate, therefore, to identify, from Schedule 3 to the draft order, exactly what it is that the Claimants seek to restrain. It is sought to prevent the magazine publishing certain matters referred to in the Opinion, namely:
“1. The fact that the Law Society Adjudication Panel found that [the Solicitor] acted in breach of Law Society rules on conflict of interests, or the fact that it decided to sanction or reprimand [the Solicitor], or the basis of and reasons for such sanction or reprimand, and the fact that the Law Society Appeal Panel upheld the findings of the Adjudication Panel in respect of [the Solicitor].
2. Any information or other matter which leads or may reasonably lead to the identification of [the Solicitor] or [the Firm] as the subjects of, or as being referred to in, the Opinion of the [SLCC] dated the 11 th December 2008 following investigation of [the complainant's] complaint into the way in which the Law Society Consumer Complaints Service handled a complaint by [the complainant] against [the Firm] and [the Solicitor] and [a second solicitor in the Firm].”
So much for the background. The problem which arises before me is the extent to which any of these matters can be regarded as truly confidential in the sense that there are any enforceable obligations to keep the information confidential on the part of the complainant and/or the publishers of Private Eye.
There is evidence from the Solicitor to the effect that, had the reprimand been regarded as other than “internal” or “private”, he would have sought judicial review of the Panel's decision. There is no reason to doubt his evidence that he chose not to do so because the disadvantage of judicial review proceedings taking place in public would outweigh the possible advantage. He felt, in other words, that he could live with the reprimand (unjust though...
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