Winters v Mishcon de Reya [2008] EWHC 2419 (Ch), [2008] All ER (D) 123 (Oct)
Chancery Division, Henderson J, 15 October 2008
Where there has been a joint retainer, or where the same solicitors have acted for two clients in related matters in which they had a common interest, neither client can claim legal professional privilege against the other in relation to documents, or any form of communications which passed between them and the solicitors, within the scope of the joint retainer or matter of common interest concerned.
Alastair Wilson QC and Jeremy Reed (instructed by George Davies LLP) for the claimant. Justin Fenwick QC and James Collins (instructed by Mishcon de Reya) for the defendant.
The claimant was the former chief executive of the UK branch of a Jewish charity, the JNF. Having previously acted for the JNF, in September 2006, the defendant firm of solicitors again acted for the JNF in relation to allegations made against it by one of its former trustees to the Charity Commission. Those allegations included allegations against the claimant.
The Commission investigated the matter. In June 2008, the claimant’s solicitors wrote to the JNF, claiming that the JNF had fundamentally breached the claimant’s contract of employment (the employment dispute). The JNF denied the allegation and suspended him from his duties, citing various allegations of financial misconduct in his role as chief executive. In July 2008, the claimant’s solicitors sent a letter of complaint to the defendant, alleging that it was improper for the defendant to act for the JNF in relation to the employment dispute on the basis that the claimant was a client of the defendant. They claimed that the defendant was in possession of confidential information about the claimant, and that the defendant had advised the claimant in his personal capacity. The defendant refused to give an undertaking to cease acting for the JNF, on the basis that it had been unable to find any confidential information which it had obtained from the claimant which was relevant to the employment dispute.
The claimant subsequently brought proceedings, describing his claim as being for “a threatened breach of confidence” by the defendant.
Mr Justice Henderson:
His lordship found on the facts that the defendant had acted for the claimant in his personal capacity for two brief periods only, the first in March/April 2006, and the second beginning in late July 2006 and continuing for a month or two thereafter in connection with proposed libel proceedings. Each retainer was closely linked with a contemporary retainer of the defendant by the JNF, in circumstances where there was no perception on either side of any conflict of interest between the JNF and the claimant. The claimant accepted that the first retainer had been a joint one. The second retainer was a separate one, but so closely linked with the retainer of the defendant by the JNF relating to ongoing litigation that no question of privilege or confidence as between the claimant and the JNF could reasonably have been seen as arising at that stage, at any rate in relation to matters of common interest to the claimant and the JNF.
It was clear that in circumstances where there was a joint retainer, or where the same solicitors acted for two clients in related matters in which they had a common interest, neither client could claim legal professional privilege against the other in relation to documents which came into existence, or communications which passed between them and the solicitors, within the scope of the joint retainer or matter of common interest concerned. The principle was stated in CIA Barka de Panama SA v George Wimpey & Co Limited [1980] 1 Lloyd’s Rep 598 at 615:
“As regards the claim for legal professional privilege, it seems to me that the general principle underlying several authorities to which our attention has been called by Mr Lincoln, can be accurately stated in quite broad terms, and I would put it in this way. If A and B have a common interest in litigation against C and if at that point there is no dispute between A and B then if subsequently A and B fall out and litigate between themselves and the litigation against C is relevant to the disputes between A and B then in the litigation between A and B neither A nor B can claim legal professional privilege for documents which came into existence in relation to the earlier litigation against C.”
Only documents were in issue in that case, but the same principle had to apply to communications of all kinds passing between A and B and their lawyers.
Confidential information
The claimant further relied on alleged misuse of confidential information, and the principles in Bolkiah v KPMG (a firm) [1999] 1 All ER 517. The claimant rightly accepted that it was an essential precursor to invoking the Bolkiah jurisdiction to establish that the defendant had been in possession of information which was confidential to the claimant and to the disclosure of which the claimant had not consented. However, in view of the findings of fact in the instant case, it was clear that the claim failed at that preliminary stage.
The information which the claimant disclosed in July 2006 was not confidential as between himself and the JNF, although it was no doubt confidential as against the rest of the world. In the absence of any confidentiality attaching to the information as between the claimant and the JNF, he could not invoke the Bolkiah principle in order to prevent the defendant from acting against him. There was no general principle which prevented a solicitor from acting against a former client after the relationship between them had terminated. As Lord Millett said in Bolkiah, the “only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confi dentiality of information imparted during its subsistence”.
The claim would accordingly be dismissed.
