ZS v FS
| Jurisdiction | England & Wales |
| Judge | Mr Justice Williams |
| Judgment Date | 24 October 2017 |
| Neutral Citation | [2017] EWHC 2660 (Fam) |
| Docket Number | Case No: ZC16D00243 |
| Court | Family Division |
| Date | 24 October 2017 |
[2017] EWHC 2660 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice,
Strand, London, WC2A 2LL
Mr Justice Williams
Case No: ZC16D00243
Martin Pointer QC & Rebecca Carew Pole (instructed by Sears Tooth), for the Claimant
Philip Marshall QC & Charlotte Hartley, (instructed by Hughes Fowler Carruthers) for the Defendant
Hearing dates: 23 rd–24 th October 2017
JUDGMENT APPROVED
(14.00 pm)
Ruling by
This is my judgment delivered at 2 o'clock at the conclusion of this two-day hearing. It is made in relation to an application made by the husband, Mr S, for an order that the wife's solicitor, Raymond Tooth, be debarred from acting for her in these proceedings. The wife is Mrs S. The husband is today represented by Mr Philip Marshall QC and Ms Charlotte Hartley. The respondent wife is represented by Mr Martin Pointer QC and Mrs Rebecca Carew Pole.
I was also due to be dealing with directions in respect of the divorce petition and an application for a declaration of marital status, see page B30, paragraph 5.1 of the order of Mrs Justice Roberts of 22 June, and in particular an application by the husband at B71A for the instruction of an expert in Russian law, which was issued on 18 October 2017. As a result of exchanges earlier today the majority of those directions, in particular in relation to the instruction of experts, is to be adjourned to a further short hearing.
The background to the application.
A divorce petition was issued by the wife in September 2016. This application arises out of the fact that following initial contact between the wife's and the husband's solicitors, the husband raised the point that Mr Tooth was one of six solicitors his representative had consulted in November 2015 with a view to, he says, choosing which firm would be a good fit for him were family litigation to occur in London. When that litigation was in prospect, in February 2017, and it transpired that the wife had instructed Sears Tooth, he objected on the basis that Mr Tooth was privy to confidential and privileged information which was such as to conflict him from acting for the wife.
Proceedings in relation to the suit and the declaration of validity of the Russian divorce are to be determined in a five day hearing between 12 to 16 February 2018. There may also be financial remedy proceedings here thereafter in the suit, or under Part III of the Matrimonial and Family Proceedings Act 1984.
The application.
This was issued on 20 March 2017. It has taken an unfortunately long time to reach a final conclusion today. The basis of the application is set out at B3. The particular orders which the Court was being invited to make were (I ignore 1 because that has been superseded):
"2. Raymond Clive Tooth and Sears Tooth solicitors be barred forthwith from further acting for the petitioner in these proceedings and/or any related or ancillary proceedings arising out of the dissolution of the marriage between the petitioner and the respondent.
"3. Sears Tooth solicitors do forthwith take steps to remove themselves from the record as acting for the petitioner.
"4. Pending determination of the application Raymond Clive Tooth and Sears Tooth solicitors be barred from taking any further step on behalf of the petitioner in these proceedings.
"5. Raymond Clive Tooth and/or Sears Tooth solicitors do jointly and severally pay the costs of and incurred in making this application on an indemnity basis."
As I say, the essential elements in support of that application were set out at page B3.
On 20 March, the day of issue, an ex parte application was made to secure an urgent listing. Mr Justice Moor dismissed that. On 6 April 2017 the application came on before Mrs Justice Roberts who adjourned it to 22 May 2017. On 22 May Mrs Justice Roberts gave directions for this hearing and timetabled the filing of evidence and on 22 June she gave directions in respect of the suit and the declaration.
The law.
Supplementing the submissions on the law that I have received, both orally and in writing, I have been referred to the following texts and cases: (a) Passmore on Privilege (3 rd ed); (b), Minter v Priest [1929] 1 KB 655, (c) Minter v Priest: [1930] AC 558, (d) In a Little Spanish Town (Francis Day & Hunter v Bron) [1963] Ch 587; (e) Great Atlantic v Home Insurance [1981] 1 WLR 529; (f) HRH Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52.; (g) Davies v Davies [2000] 1 FLR 39; (h) Re T v A, (children, risk of disclosure)) [2000] 1 FLR 859; (i) B & Others v Auckland District Law Society [2003] UKPC 38; (j) Fulham Leisure v Nicholson, Graham & Jones [2006] EWHC 158; (k) the West London Pipeline case [2008] EWHC 1729; (l) Re Z (restraining solicitors from acting) [2009] EWHC 3621; and (m) G v G (financial remedies, privilege, confidentiality) [2015] EWHC 1512.
The law ultimately was largely agreed, although there was a difference between the parties on three issues: firstly, whether the risk of disclosure of confidential or privileged information can come from subconscious or unconscious influence; secondly, whether there can be a partial waiver of privilege and how that might be dealt with; and thirdly, whether making an injunction is mandatory if the grounds are established, or whether the Court still retains a discretion whether to grant the order or not.
In summary, the principles I derive from all of those cases and which I apply are as follows.
(a) the duties arising in confidentiality and legal professional privilege arise whether the information is imparted to a solicitor directly by a principal, or by an agent on behalf of his principal. It would therefore apply to any confidential information or legally privileged material which arose between Raymond Tooth and OE.
(b) the duty arises whether the parties formally entered into a legal relationship or not. The imparting of information in contemplation of such a relationship would suffice. Thus a preliminary meeting between solicitor and client in the course of a beauty parade could suffice, probably even if pro bono or not charged for.
(c) the rules apply in family cases just as much as in civil actions. There is no absolute rule though that a solicitor cannot act in litigation against a former client.
(d) in the first instance it is a matter for the solicitor involved to consider whether, consistent with his professional conduct rules and the proper administration of justice, he can continue to act. If he concludes he cannot, that will usually be the end of the matter. If he concludes he can continue to act then the Court retains the power to grant an injunction to prevent him from acting.
(e) where a former client has imparted information in confidence in the course of a fiduciary relationship, and /or where that information is privileged, there are strong public policy reasons rooted in the proper administration of justice which support the approach that a solicitor in possession of such information should not act in a way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.
(f) it must be established that the confidential or privileged information is relevant or may be relevant to the matter on which the solicitor is now instructed by the person with an adverse interest to that of the former client.
(g) where it is established that a solicitor is in possession of such confidential and/or privileged information, the Court should intervene to prevent the information coming into the hands of anyone with an adverse interest, unless there is no real risk of disclosure. Once it is established that a person is in possession of such information the burden is on them to show that there is no such real risk. In this context "real" means it is not merely fanciful or theoretical, but it does not need to be substantial.
(h) the risk of disclosure may arise from deliberate act, inadvertent disclosure or unconscious influence or subconscious influence. In the latter case in particular it might be quite fact specific whether that risk arises or not.
(i) in the context of family litigation it is hard to conceive of a situation where the risk of disclosure would not satisfy that test where the Court had concluded that detailed, confidential financial information and/or privileged information had been disclosed to a solicitor by one party to a marriage which was, or might be relevant to a potential dispute between them. In most cases that would create a real risk where that solicitor was subsequently instructed by the other party.
(j) a party advancing such an application may decline to waive privilege or confidentiality, or may elect to partially waive privilege. If he partially waives privilege the Court may order full disclosure in relation to that transaction in order to determine an issue such as an application for an injunction like this, and the Court may take steps to ensure that the privilege is not waived for all purposes, but to ensure that the cat can be put back into the bag. In cases such as this the question should be considered at the directions stage, in particular where, as here, partial disclosure in the form of the attendance note has been made.
(k) if the principles on which an order can be made are established an order should usually be made, unless it is established that there are other more significant public policy reasons for not granting it, including that the Court concludes that the injustice to the respondent in granting the order outweighs the injustice to the applicant in not granting it. Relevant considerations might include, firstly, whether the information had been imparted during an exercise designed either wholly or in part to conflict out other solicitors who the respondent might seek to instruct;...
To continue reading
Request your trial
-
Alvina Collardeau v Michael Fuchs
...court had in fact found a meeting took place which Mr Tooth could not remember ( ZS v FS (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam)). The fact that Mr Tooth said he was occupied all day on 22 April 2022 in attending a private FDR in no way precluded Mr Tooth from call......