Solicitor’s retainer and professional privilege after S v S

David Burrows considers practitioner issues arising in a recent case in which a husband applied for an injunction to prevent a firm of solicitors, with whom he had previously had a preliminary consultation, from acting for his wife in divorce proceedings between them, and ponders an unexplained reference to ‘skull painting’…

The ‘blasé’ evidence of a husband’s representative

The judgment of Williams J in S v S (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam) (24 October 2017) contains a number of practitioner aspects. It turned on the evidence – treated by Williams J at [68] as ‘blasé [in relation to] accuracy in matters evidential’– which was given by a representative (‘OE’) of the husband, FS. The evidence was not given by FS himself, though he was the applicant and party to the litigation. The evidence of OE (no explanation for his anonymity, in addition to that of the parties, is given) sought to ‘conflict out’ the wife, ZS. What legal principles arose from this evidence?

OE claims to have seen Mr Raymond Tooth, a London financial relief lawyer, amongst six others (though at a time when the husband had already agreed to a retainer of yet another London firm). Should Tooth be entitled to represent the wife? He might, for example, have information which was confidential to the husband, or otherwise covered by legal professional privilege (LPP)? Whether he had such information, or not, Williams J – after a two day hearing, with four barristers in court, a trial bundle and a number of authorities (not cited beyond their names) – refused to prevent Tooth and his firm from continuing to represent the wife.

The case raises four areas of legal principle:

1. Overriding objective: use of the court’s time (Family Procedure Rules 2010 (FPR 2010) r 1.1(2))
2. Solicitor’s retainer
3. Legal professional privilege
4. Documents (other than confidential documents) to ‘make sense’ of proceedings

Overriding objective

This case ran for two days and results in a 72 paragraph judgement and, in addition, three pages of chronology. The court fee for an application like this is £155 (ie the payment to the Treasury of two days of a High Court judge’s time to deal with an issue like this). It was ‘a hearing other than the final hearing’ (FPR r 22.7), so ‘the general rule is that evidence at [such] hearings… is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise’: ie it is intended to be on the papers only. There is nothing in the judgment to say the judge had considered this rule and ‘required otherwise’ – eg a hearing with oral evidence – as to the way the application was disposed of. Two senior QCs represented the parties: did they draw the judge’s attention to these rules, one wonders?

We do not know why the case was not dealt with summarily on the papers. Outside London, you would expect a case like this to be dealt with by a district judge on the papers; with maybe short submissions only (if parties agree: FPR 2010 r 18.9(1)).

And then, what about the overriding objective? What about proportionality in FPR 2010 terms? FPR r 1.1 requires that cases be dealt with ‘justly’; and this surely includes the court administrators and judge giving thought to others – others more deserving? – who might want a High Court judge’s time. ‘Dealing with a case justly’ (FPR r 1.1(2):

“(2) … includes, so far as is practicable – (a) ensuring that it is dealt with expeditiously and fairly;… and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

True it is that the judge says (at [32]) he found it very helpful to hear “the parties give oral evidence” (though clearly this did not include the husband: OE was in effect treated as a party). It might have been thought that a summary basis for an application such as this could be devised? This is what the ‘overriding objective’ and its appeal to proportionality might be expected to anticipate?

Questions over children whose parent says they are “at grave risk [of suffering] physical or psychological harm” (Hague Convention Art 13(b)) are disposed of summarily. Children are rarely heard. An application like that of ZS could surely be treated as less important than the future of a child? The worst would be that his wife could not have Ray Tooth as her lawyer; but, excellent though Tooth may be, there are others…

Solicitor’s retainer

The first question in law which ZS v FS raises – though this is not examined with any great detail in the judgement – is the question of the inception, and continuation, of a solicitor’s retainer (the contract under which a solicitor agrees to act for a client; and see Legal triggers, New Law Journal [2010] 4 April). Judging by the cases cited (see below) the lawyer-client relationship was mostly pursued in relation to LPP which remains the main way for a retainer to be set aside by the court.

The nature of the retainer can be seen in its review in Re Z (Restraining Solicitors from Acting) [2009] EWHC 3621 (Fam), [2010] 2 FLR 132 (Bodey J), which deals with a husband’s application that a firm of solicitors should stop acting for his estranged wife, where a partner in the firm had previously acted for him. Bodey J starts from the proposition that a case of this sort “creates a tension between two public interests”: that a person should be free to instruct a solicitor of their choice; whilst a former client must know that there could be “no risk or perception of risk” that confidential information might be disclosed – even accidentally ([20]). This proposition was considered by the House of Lords in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 (a firm of accountants cannot act for different clients with conflicting interests).

There is an unqualified duty to preserve confidentiality. The burden on the professional – a “heavy” one, said Lord Millet in  Bolkiah’s case – relied on an ability to establish that there was “no risk of information confidential to the client being unwittingly or inadvertently passed on” to a new client with a contrary interest (as Bodey J put it in Re Z (above) at [25]).

Triggering a recollection

In Re Z Bodey J turned to the way in which thoughts in the sub-conscious can be triggered: “it is well recognised in the authorities that things may happen, perhaps unexpectedly, which re-awake subconscious memories. We have all had such experience of retrieving information unexpectedly after some trigger” said the judge ([38]). Thus, he said, Mrs F – Z’s solicitor – was in possession of information in the “triggerable” sense which is confidential to Mr Z, who thereby discharged the burden on him to show that there might be a real risk that information in Mrs F’s mind which might “leak out”.

Davies v Davies [2000] 1 FLR 39 (which was cited to the judge, but to which he refers no further than to say so), was another case involving Raymond Tooth. This time he was acting for the husband and being told he could no longer do so. The question had been whether he could act for the husband where, some seven years previously, he had had one consultation with the wife. Johnson J ordered that the husband should pay the wife’s costs on her application. Johnson J said he considered that there was a real, as opposed to a fanciful, risk of information in the mind of the husband’s solicitor having some impact upon the conduct of the case. In the Court of Appeal, Aldous LJ agreed, and commented:

“[50] … the memory is a complex phenomenon. Recall may be conscious or subconscious. That has been recognised in copyright cases where courts recognise that conscious and unconscious copying can take place…”.

Legal professional privilege

In S v S Williams J summarised the applicable law by reciting the cases which he says he has read; and then by summarising what he derives from the case law to which he has been referred (LPP is entirely a creature of common law):

“[8] 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:

Passmore on Privilege (3^rded);

Minter v Priest [1929] 1 KB 655; [and]  [1930] AC 558;

‘In a Little Spanish Town’ (Francis Day & Hunter v Bron) [1963] Ch 587;

Great Atlantic v Home Insurance [1981] 1 WLR 529;  

Prince Jefri Bolkiah v KPMG (A Firm) [above];

Davies v Davies [above];

Re T v A, (children, risk of disclosure) [2000] 1 FLR 859;

B  v Auckland District Law Society [2003] UKPC 38;[2003] 2 AC 736;

Fulham Leisure v Nicholson, Graham & Jones [2006] EWHC 158 (Ch);

West London Pipeline case [2008] EWHC 1729 (Comm);

Re Z (restraining solicitors from acting) [above]; and

G v G (financial remedies, privilege, confidentiality) [2015] EWHC 1512.”

The judge says he extracted from the list eleven listed points, which included:

“(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….

(b) The duty arises whether the parties formally entered into a legal relationship or not….

(c) … There is no absolute rule though that a solicitor cannot act in litigation against a former client.

[…]

(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.

[…]

(j) A party advancing such an application may decline to waive privilege or confidentiality, or may elect to partially waive privilege….

(k) If the principles on which an order [preventing breach of privilege] 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.”

It is possible to identify some of these points from the listed cases; but it is disappointing that Williams J does not say what case law authority forms the basis of the points he asserts. LPP is a common law doctrine and if a court is to make assertions from it as to the law it would, with respect, be most helpful if such assertions could state also the authority on which they are based.

Basic aspects of the law in relation to LPP include that it is an absolute right, not a rule of evidence. It is an aspect of an individual’s right to a fair trial; though it does not depend on their being litigation in prospect (R v Derby Magistrates Court, ex p B [1996] AC 487, [1996] 1 FLR 513; R (Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1, [2013] 2 AC 185).

This being the case the principle in (k) above – that the court can by order override privilege (other than clearly defined circumstances) – is controversial. Without further explanation from the judge it is difficult to understand how he justifies what he says.

Documents; and the ‘skull painting’…

The judgement in this case points up an increasing difficulty which is part of a well-worn path on release of hearings documents (see this earlier post, Family law no island (2): Release of family courts hearing documents). “Transparency”, it has been suggested from judges at the highest level, should be increased by release of certain documents read by the judge outside the hearing: see eg Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338; Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498; and Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618. This would enable those who attend court or otherwise want to ‘make sense’ (Lord Scarman’s term) of proceedings (eg witness statements, skeleton arguments etc suitable anonymised).

The essential elements of ZS’s main application before the court (for a declaration of the validity of a Russian divorce) are said to have been “set out at B3”; and an unexplained “skull painting” (referred to only once in the judgement ay [15]; and nothing to do with Holbein’s The Ambassadors at the National Gallery, I am told), are listed amongst a number of items which are intended show that “the meeting” with ZS’s representative took place. An understanding of the declaration application may be essential to an understanding of the judge’s decision; the “skull painting” less so. The reader of the judgment (as would have been the case for anyone attending the hearing) can only make limited sense of it without certain basic documents.

The reality of transparency and the understanding of proceedings will be the greater if this issue – for courts which sit in private and in open court (as the example of the Guardian v Westminster case makes clear) – is looked at soon.

David Burrows

4 December 2017