England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 February 2009

Mr Justice Blackburne :

Introduction

1. By a Part 8 claim form issued on 14 January 2009 the claimant, who is a solicitor, seeks an order requiring the second defendant, John Gould, a partner in Russell-Cooke who are solicitors, to make and serve a witness statement which (a) confirms whether his firm has or has at any time had possession of any of the claimant's documents relating to what are described as the Employment Tribunal Proceedings, (b) states what has happened to any such documents which his firm has had but no longer has, (c) identifies the members of his firm who have access to those documents and the members of his firm who are carrying out work on the Employment Tribunal Proceedings and (d) confirms whether any of the members of his firm who are carrying out work on the Employment Tribunal Proceedings have had access to the documents or have discussed the case with those members of the SRA and/or his firm who have had access. He also seeks an order that Mr Gould deliver up to the claimant the originals and any copies of any of the Employment Tribunal files in the possession of the first defendant, which is the Law Society, or himself, or Russell-Cooke. He seeks similar relief against the third defendant, Nigel Ingram, who is a member of the Bar, except that the witness statement which Mr Ingram is required to make, so far as it is concerned with identifying those who have access to the Employment Tribunal documents, is that he should identify all persons who have had access to such documents and should confirm whether the Law Society or Mr Gould or any members of Russell-Cooke have had access to them. No relief of any kind is made against the Law Society, which is sued in its capacity as the Solicitors Regulation Authority ("SRA"), except that an order is sought that it and the other two defendants should pay the claimant's costs.
2. The matter comes before me as a result of an application notice, issued on the same day as the claim form, by which the claimant seeks the relief set out on the claim form. It asks the court to grant the relief by way of an expedited hearing in view, as it is put, "of the impending proceedings in the Employment Tribunal between the applicant and the first defendant…listed for a three day hearing commencing 21 January 2009".

The background: the Employment Tribunal Proceedings and the SRA investigation

3. The background to the matter is as follows. The proceedings referred to in the claim form as the Employment Tribunal Proceedings were begun by the claimant against the SRA in the Employment Tribunal on 19 May 2008. The proceedings allege discrimination and victimisation. They followed a complaint of race discrimination against the SRA made by the claimant by service in February 2008 of a questionnaire under the relevant legislation. I have been told very little about the proceedings beyond what is set out in a witness statement made on the claimant's behalf by Nigel West of RadcliffesLeBrasseur ("Radcliffes"), who are the solicitors acting for him in this claim. Mr West refers to there being over 500 acts of discrimination and victimisation that have been identified and says that the financial value of the claim is substantial. I was told in the course of the hearing that the damages claimed are £10 million. In those proceedings the claimant is, or was, represented by his own firm which is called Dean & Dean. The SRA acts by Russell-Cooke. I was told that the hearing which is due to commence on 21 January 2009 (and is referred to in the application notice) is an application by the SRA to have the claim against it struck out. Until late into the course of the hearing before me, which began on 19 January, I was not told what the grounds of the strike-out are. I will return to this later. If those proceedings survive that challenge I am told that the trial will last ten weeks or so.
4. Separate from the Employment Tribunal Proceedings has been an investigation by the SRA into the claimant's conduct as a solicitor practising as Dean & Dean. It was followed by an intervention into that practice. Relevant to this is that, at any rate until 1 December 2008, the claimant has been a partner in Dean & Dean holding a major share, indeed by 1 December the whole of the equity, in the practice.
5. The SRA is an establishment of the Law Society and is responsible, among other things, for regulatory and disciplinary matters concerning solicitors. Under section 79 of the Solicitors Act 1974, the powers of intervention given to the Law Society have been delegated to the SRA Board, which is one of the permanent committees of the Council of the Law Society, and by the Board to adjudicators in appropriate circumstances. Powers conferred by Part II of Schedule 1 to the 1974 Act are, pursuant to section 35 of that Act, exercisable in circumstances where the Society decides that the conditions set out in paragraph 1 of the schedule have been satisfied. In this particular case the relevant paragraph of the schedule is paragraph 1(1)(a)(i), where the Law Society has reason to suspect dishonesty on the part of the solicitor, and paragraph 1(1)(c), where the Law Society is satisfied that a solicitor has failed to comply with the Solicitors' Accounts Rules 1998.
6. Acting in exercise of its investigatory powers, the SRA wrote to the claimant on 3 October to inform him that it was carrying out an investigation into various applications which he had made to the Law Society for exemptions from education and training requirements prior to his admission as a solicitor. The letter contained several allegations of dishonesty. On 8 October SRA inspectors attended at Dean & Dean's office and served the claimant with a notice under rule 34 of the Solicitors' Accounts Rules requiring Dean & Dean (which I shall refer to as "the firm") to produce their accounting records for the purpose of an investigation and also a notice under section 44B of the 1974 Act requiring the firm to deliver up specific files to the SRA.
7. The firm, then still under the claimant's control, countered by applying without notice for, and obtaining, injunctive relief in the Queen's Bench Division restraining the inspection. The application was made in support of a proposed judicial review. It was alleged that the inspection was actuated by improper motives having regard to the pending Employment Tribunal Proceedings. Eventually the matter came before Pitchford J who on 6 November set aside the injunction, refused the application for judicial review, and awarded the Law Society its costs on the indemnity basis, ordering a payment on account in the sum of £70,000. The judge found that the original without notice injunction had been obtained on partial and misleading information as to the urgency of the application and the grounds and strength of the claim. He found that the grounds upon which the Law Society based its suspicions concerning the claimant were "substantial" and that there was nothing which remotely justified any suspicion, let alone any inference, that the Law Society and its agents had been acting for what he described as "oblique motives".
8. The investigation was therefore able to continue and did continue.

The claimants' sabbatical

9. According to the evidence filed on his behalf, the claimant decided at about this time to "take a sabbatical for a period of at least three months" during which he would not practise as a solicitor, would cease to hold any monies in connection with the firm's practice, would be removed from the firm's bank mandate and would not be involved in the firm's management. Radcliffes, acting on his behalf, wrote to Russell-Cooke (on behalf of the SRA) on 6 November 2008, the very day of Pitchford J's judgment, to say so. The claimant's stated purpose, according to Radcliffes' letter, was to enable him to devote his time to preparing his response to the allegations which the SRA were making against him. According to Mr Adair who appeared for the claimant before me, it was also to enable the claimant to deal with the Employment Tribunal Proceedings.
10. It seems that the claimant went further. On 20 November or thereabouts, he is said to have reached an agreement with a Mr Tehrani, the former owner of the firm's practice, to transfer to him his interest in the practice. By then the claimant was the sole equity partner in the practice. I was told that this agreement resulted in a deed of transfer or assignment - I have not seen the document - dated 11 December whereby the claimant purported to transfer his interest to Mr Tehrani effective from 1 December 2008. The Law Society does not accept that this document has any validity. It says that it was an attempt by the claimant to forestall what he foresaw as inevitable - and as happened the very next day - namely, a resolution by the SRA to intervene into the firm's practice on grounds that it had reason to suspect dishonesty by him.
11. Before coming to what next happened I should mention three matters. The first is that on 17 December, having given notice, the Law Society resolved to intervene in the claimant's practice on the grounds that he had breached the Solicitors' Accounts Rules. The second is that the claimant has issued a challenge to the intervention notices, inter alia, on the ground that the Law Society had no reason to suspect dishonesty or breaches of the Solicitors' Accounts Rules, and that the intervention serves no purpose as, by the time that it was effected, he had divested himself of his practice as a result of the transfer to Mr Tehrani. I am not concerned to determine those issues. The third is simply to explain that the notice of intervention operated to give to the Law Society the immediate right to possession of practice papers, to vest practice funds in the Society (and thus to stop operation of the practice's client account) and to suspend the intervened solicitor's practising certificate.

The intervention

12. Following the resolution to intervene, Mr Gould accepted an appointment as the SRA's intervention agent. He and others from Russell-Cooke attended at the firm's offices on Monday 15 December 2008 in order to take possession of the firm's files. Also present was Mr Ingram.
13. This brings me to Mr Ingram's role in the matter. Prior to the intervention occurring, indeed prior even to the decision by the SRA to intervene but in the expectation that such a decision would be made, Russell-Cooke prepared and sent "instructions to counsel" to act as independent counsel on the intervention. No one was named at that stage. As the instructions made clear, and as Mr Gould confirmed in his witness statement, neither Russell-Cooke nor the Law Society selected counsel who was chosen, namely Mr Ingram. Instead, this was left to the clerk in the chambers at 2 Bedford Row to which the instructions were sent. The request was for junior counsel of some seniority. In the event, Mr Ingram was nominated by the clerk and was duly instructed. The purpose of instructing him was, as paragraph two of the instructions made clear, "to put in place arrangements by which material over which legal professional privilege is or could be asserted can be examined by independent Counsel, initially at the offices of the Firm or, if required, following removal by independent Counsel back to Chambers." Implicit in this instruction, and fully understood by Mr Ingram, was that any material over which legal professional privilege could be claimed would not be inspected by (and thus its contents come to the knowledge of) either the SRA or Russell-Cooke. I will come later to the criticisms which the claimant makes about Mr Ingram's involvement. At this stage I am concerned to set out what happened.
14. The intervention itself involved more than two days of attendance at the firm's offices to box and remove papers At paragraph 21.3 of his witness statement Mr Gould explained that, at the time of the intervention, a full opportunity was given to the firm to identify the documents over which it sought to assert privilege. He said that the need to identify and separate papers relating to the proceedings against the SRA was stated, emphasised and re-emphasised to Ms Turbin and Mr Tehrani from an early stage. (Mr West made clear in paragraph 9 of his witness statement that those two were the persons who managed the firm's practice after 6 November 2008, with Mr Tehrani claiming to be, as I have mentioned, the sole proprietor of the firm from and after 1 December 2008.) Mr Gould continued (at paragraph 21.3 of his witness statement) that "it appeared that [Ms Turbin and Mr Tehrani] understood and did indeed separate the relevant papers and give them into the possession of Independent Counsel by the end of the first day of attendance".
15. An attendance note of the events at the firm's office on 15 December 2008 was in evidence. The note was prepared by Russell-Cooke and approved by Mr Ingram. Among other matters it records that Mr Gould explained how Mr Ingram had been selected (in the way that I have already summarised) and that:

"…there had been no discussion with Mr Ingram by either the SRA or Russell-Cooke prior to the intervention. Mr Ingram provided direct reassurance that he regarded himself as independent and that he had acted as independent Counsel in previous instances and well understood the role…

Counsel continued to describe his background and the independent and neutral nature of the role… He confirmed that he was instructed to attend and look at material in relation to which legal professional privilege was being asserted. He would examine any such material and see if the assertion appeared to be sound. He emphasised that the onus was on JT [Mr Tehrani] and CT [Ms Turbin] to assert legal professional privilege. He would be happy to receive any comments or representations from them as need be which would assist him in analysing the position of any papers brought forward. His analysis would be done completely independently of the SRA or Russell-Cooke. Insofar as there was any ongoing litigation he suggested that CT or JT give priority to identifying those matters so that he could consider those first …

JCG [Mr Gould] indicated that in relation to files which were identified and privilege was asserted, Russell-Cooke would be looking for Counsel to take possession. It was agreed that insofar as these papers were bulky, they would be moved to Counsel's Chambers and Russell-Cooke movers would undertake the actual moving exercise under Counsel's direction. JCG stressed that any papers relating to disputes between the partners of the firm and the SRA should be separated first and, provided Counsel was satisfied that that indeed was what they were, there was no need for Counsel to consider detailed questions of privilege and that they should be returned immediately to CT."

I have no reason to doubt the accuracy of that note and Mr Adair did not suggest any.

Events subsequent to the intervention

16. Two days later, on Thursday 18 December 2008, two members of Russell-Cooke attended Mr Ingram at the latter's chambers. A full attendance note was taken. This note is of importance because it sets out fully the arrangements made and protocol established to preserve the firm's (and the claimant's) confidentiality in documents over which legal professional privilege could be asserted. I shall therefore set the note out in full.

"Background

NI [Mr Ingram] has been appointed by the SRA to act as independent Counsel to review papers in which privilege is claimed by the intervened practice.

1.         NI confirmed that prior to his instruction he knew nothing about the firm, just that he had to attend Dean & Dean.  He felt therefore coming into this matter he was entirely objective and neutral.

2.         NI thought it might be helpful if he had some idea of the SRA's complaint and concerns. JXA/JEW [partners in Russell-Cooke] confirming that they would seek instructions on whether NI might be provided with the intervention resolution which provided some, albeit limited, detail of the issues of concern.

3.         NI confirmed that on 15 December 2008 he met with Mr Tehrani ("Tehrani") and Ms Turbin ("Turbin") at their offices and they provided him with boxes of files in respect of which they asserted LPP [legal professional privilege].   NI confirmed that he is currently considering these files.   He is conscious of the urgency of the process since he understands an amount of the papers relate to ongoing Dean & Dean litigation with former clients which might be prejudiced if consideration of papers is delayed.  He believes he will have completed review of the boxes (and have determined the extent to which LPP arises by Monday evening.

4.         NI confirmed that Turbin met with him this morning and that he had been in communication with Tehrani and Turbin regarding release of certain papers. He will provide copies of the email communication to JXA and JEW.    NI confirmed that three boxes had been released to Turbin and Tehrani which related to an on-going claim in the USA.   The amounts in dispute were significant and Tehrani had indicated prejudice would be suffered by the firm if the papers were not released.   He had a record of the released files.   JXA and JEW will be provided with details...

5.         To the extent that LPP arises NI would like to discuss protocols to dealing with the papers held by him,

Existing Papers with Independent Counsel

6.         It was agreed that transparency is paramount.   It was agreed all communication between the parties will be copied to all and RC [Russell-Cooke] will liaise with Tehrani/Turbin re the proposed RC process.

7.         In relation to papers independent Counsel holds relating to Dean & Dean/Mireskandari litigation against the SRA those documents can be returned in their entirety by Counsel to the firm (or to those entitled).

8.         NI is producing a schedule of the files he has considered in general non descriptive terms.   Copies will be provided to Dean & Dean and Russell-Cooke.

9.         NI and JXA/JEW discussed protocol for files NI was examining.   Summarised as follows:

9.1       If NI identifies LPP, (other than in the context of Dean & Dean litigation against the SRA) a summary of findings/analysis should be provided to RC to take instructions on whether the analysis is disputed.   If LPP is disputed the SRA will take appropriate steps to have the issue determined.

9.2       If NI does not identify LPP but feels appropriate to give D&D opportunity to make objections before papers provided to RC, he will contact D&D and copy communication to RC.

9.3       If there is no LPP subsequently claimed by Dean & Dean, papers will be provided to RC to be dealt with in accordance with standard intervention processes.

Note 1: JXA/JEW reminded NI of the distinction to be made between "client" papers as opposed to Dean & Dean files.   If papers/files are properly client papers, Dean & Dean are not entitled to them.

Note 2: If Tehrani/Turbin require files urgently (which files they are entitled to notwithstanding the intervention) in advance of their release NI is to ensure these are copied and copies maintained until issues of LPP resolved. Russell-Cooke will make arrangements for Legastat to provide services on an urgent basis as and when required.

1600 Boxes at Russell-Cooke

During attendance at the intervention Dean & Dean were invited to assert LPP in respect of any matter and those papers constitute the papers with Independent Counsel.

RC is concerned to ensure notwithstanding LPP was not raised re the balance, regard is had to the potential for it to arise.

10.       JXA/JEW outlined the protocol RC is proposing to implement internally in relation to the 1600 boxes we have:

10.1 Administrator will input file details, matter, client etc.

10.2    Administrator will create summary schedule of individual files on client matters by reference to spines, covers etc.

10.3     RC will fax file schedules to Dean & Dean and invite them to assert privilege, if any.

10.4     If privilege is asserted papers sent to independent Counsel and the above arrangements will apply.

10.5     If no privilege asserted the file will be checked in accordance with usual intervention processes.   If on checking it becomes apparent there are privileged documents on the file (vesting in Dean & Dean) then the relevant parts of file will be sent to Independent Counsel for review.

11.       As regards papers in relation to which there is a dispute as to LPP, NI confirmed these will be held in Chambers.   If they are urgently required by Dean & Dean these will be copied by independent Counsel and the copies maintained in chambers until LPP resolved.

Action required:

i.          JXA/JEW to seek instructions from the SRA as to whether NI can be provided with a copy of the intervention resolution.

ii.         JXA/JEW to contact SRA to get confirmation as regards copying through Legastat and to put arrangements in hand.

iii.        JXA/JEW to prepare a note of today's meeting for circulation.

NI confirmed that he anticipated completing the consideration of the files he currently had in his possession by Monday, 22 December 2008."

In his evidence Mr Gould drew attention to these measures explaining that any further potentially privileged material identified by a member of the intervention team (notwithstanding any earlier failure by the firm to claim privilege) was to be sent, unread, to independent counsel for his consideration. He emphasised that "No-one working on the discrimination proceedings was to be involved, or shown or told about papers which had been taken during the intervention".

17. In the early evening of Sunday 21 December Mr Ingram e-mailed a note to the firm and to Russell-Cooke stating that he had almost concluded his review of the boxes which he had had removed from the firm's offices to his Chambers and would be sending a neutral schedule of the "matters reviewed and the[ir] generic contents". He set out the broad categories into which he had separated the matters that he had reviewed and stated that although all of the boxes passed to him had been marked "privileged" it was for the firm to justify the claim to privilege. In his covering e-mail to the firm, he invited them to make good their claim to privilege over the material which he held and asked them for their initial response within 24 hours
18. The following day, 22 December, Mr Ingram e-mailed the promised schedules to the firm and Russell-Cooke. The schedules summarised in very broad terms the contents of approximately 55 boxes (running in all to a very great many files and quantities of loose papers). He indicated that he would be away from chambers until the early New Year but could be contacted by e-mail. That same day he was e-mailed by Mr Tehrani (of the firm) to say that Ms Turbin (whom Mr Ingram understood to be the partner in the firm concerned to deal with claims to privilege) had left for a week's holiday and that he (Mr Tehrani) wished to make no representations regarding what material held by Mr Ingram was privileged and what was not.
19. On 24 December, Radcliffes wrote to Mr Gould objecting to the fact that Mr Gould had not released the files relating to the Employment Tribunal Proceedings and asked for information about the files that had been seized. They also objected to Mr Gould's acceptance of appointment as intervention agent when Russell-Cooke were also representing the SRA "in a number of different proceedings and investigations" relating to the claimant, including the Employment Tribunal Proceedings. They complained that Mr Gould had failed to respond to Radcliffes' earlier requests for undertakings to prevent the SRA from having access to privileged material. Radcliffes also wrote to Mr Ingram. The letter questioned Mr Ingram's role as independent counsel, challenged the lawfulness of the seizure of the firm's files and asked whether he had any files relating to the Employment Tribunal Proceedings and, if he had, to pass them to the claimant.
20. On 30 December, Russell-Cooke replied to Radcliffes to say that they had understood that Ms Turbin and Mr Tehrani of the firm had identified the papers relating to the Employment Tribunal Proceedings and made them available to Mr Ingram and that certain files had already been returned to the firm by Mr Ingram. They stated that "insofar as we identify any files which appear to be related to your client's discrimination proceedings, we will forward them unexamined to independent counsel as a matter of urgency". The letter rejected Radcliffes' complaint about Russell-Cooke's role, mentioned that the firm's representatives present at the intervention had identified quantities of material over which privilege was claimed and stated that "insofar as they may have overlooked material, we have put in place still further arrangements to protect your client's privilege and any materials to which it applies". The letter emphasised that there was no question of any privileged material reaching any members of Russell-Cooke dealing with the Employment Tribunal Proceedings.
21. Radcliffes were not happy with this response. In their reply dated 31 December they insisted that any of the claimant's files relating to the Employment Tribunal Proceedings be delivered to Radcliffes and not to independent counsel. They stressed that the matter had to be dealt with immediately "because there is a hearing in the discrimination proceedings in January".
22. Having only received Radcliffes' letter to him of 24 December on his return to Chambers on 2 January, Mr Ingram immediately emailed his reply. In it he confirmed that he was acting as independent counsel and that he was currently holding more than 50 boxes of materials over which the firm had asserted legal professional privilege. He stated that among the materials held were files which appeared to relate to the Employment Tribunal Proceedings and that he would be happy to meet Mr West to view and photocopy materials which were required for the claimant's litigation with the SRA.
23. On 5 January, Radcliffes wrote to Mr Ingram to complain that the claimant was unaware until late on 2 January that Mr Ingram was holding files relating to the Employment Tribunal Proceedings (but of course the firm had earlier been made aware that this was or might be the case), disagreed with Mr Ingram's suggestion that the files be photocopied, contended that "the SRA is not entitled to retain files seized during an intervention once a demand has been made for delivery up of the files by a client" and notified him that the claimant proposed to attend at Mr Ingram's Chambers at 4 pm the following day, 6 January, to collect his files.
24. On 6 January Russell-Cooke responded to Radcliffes' letter of 31 December. In it Russell-Cooke stated that if any papers relating to the Employment Tribunal Proceedings had not been identified and retrieved by Ms Turbin and Mr Tehrani, they would be with independent counsel. The letter continued:

"As you will be aware, we are in the process of cataloguing a very substantial quantity of papers. This cataloguing exercise will allow us to identify any further papers to which privilege might be claimed. If such papers emerge, we will afford your client a further opportunity to claim privilege over relevant papers. If privilege is claimed, they will be sent to independent counsel to assess whether privilege arguably applies to any of the papers in question. There is no basis upon which either we or your client can assess the merit of any claim to privilege put forward by your client without examining the papers, which is the reason for the use of independent counsel.

We doubt that we are in possession of any papers relating to your client's discrimination proceedings and hence our suggestion that you arrange for Ms Turbin to confirm (if it is so) that she believes that papers were overlooked by her and her indication of the nature and location of those papers within the office.

In relation to the papers with independent Counsel, we would expect a proposal from him for the release of privileged papers to your client within the next few days. You are of course able to contact him directly."

25. At the same time and for good measure, Russell-Cooke e-mailed Mr Ingram (with a copy to Radcliffes) to confirm that papers relating to the claimant's claim in the Employment Tribunal Proceedings "are privileged and the SRA would not seek to consider them nor object to their release". The e-mail left it to Mr Ingram to make the necessary arrangements and stated that no one from Russell-Cooke needed to be in attendance.
26. Shortly before midday on 6 January Mr Ingram e-mailed Mr West of Radcliffes to say that the papers in the Employment Tribunal Proceedings would be available for collection from his Chambers at 10 am the following day, 7 January. He added that "It is essential that I am in attendance as all papers have been placed in my custody." He confirmed (following an earlier message) that he would be unavailable that day at 4 pm (which had been the time originally fixed for the claimant to attend to collect his papers).
27. Shortly after midday on 6 January Mr Ingram circulated a note setting out the material that he held and his provisional view on what was and was not privileged. He summarised the law on privilege and listed in very general terms the eight main areas of documentary material which he held. He made clear that he was happy for papers relating to the Employment Tribunal Proceedings to be identified at a joint meeting and copies made. He stated his understanding that both sides accepted that the litigation papers between the claimant and the SRA could be released to the claimant personally.
28. Later that same day, Mr West e-mailed Mr Ingram to say that the claimant would attend Mr Ingram in his chambers at 10 am the following day, 7 January, to collect his papers. The e-mail complained about Mr Ingram's role in the matter and the time it had taken for him to confirm that he would release the claimant's files. (I regard this criticism as unfair and unjustified, not least given the intervening Christmas/New Year break and the absence of any response from Ms Turbin and/or Mr Tehrani despite Mr Ingram's earlier invitation to them to identify any additional privileged material.) The e-mail also asked Mr Ingram to provide details of the date on which he received the files, the place in which the files had since been held and the names of any persons who had had access to them since he had received them. It inquired about the extent to which Mr Ingram had read the files and asked for confirmation that no representative from Russell-Cooke had had access to them since he (Mr Ingram) had received them. It also sought details of any persons to whom he had passed on any information found in them. The letter asked for a statutory declaration confirming the information requested.
29. In the light of this request from Radcliffes, a telephone conference took place between Mr Ingram and Mr Gould (and two others from Russell-Cooke). An attendance note was made of the conference and a copy sent to Radcliffes. In the course of the conference, according to the note:

"…JCG confirmed that …he saw NI's role as one of holding the papers and identifying issues. If it could be agreed between the parties that papers could be delivered to Radcliffes/SM [the claimant] or Russell-Cooke then that resolved the position. If not, it was possible to decide on any given issue by way of an application to the Court. It was important to realise that NI was not being asked by Russell-Cooke to adjudicate upon such decisions, simply to identify the issues …

JCG clarified the position in relation to any matters in which the SRA was a party and confirmed there was no problem sending back such material to [the claimant] or other individuals as necessary in the circumstances. The SRA accepted that this material could be returned.

NI confirmed that he had been working on that basis. However there was simply so much material he was extremely reluctant to release large swathes and return the same until he could be sure categorically that it fell into the right categories in order to err on the side of caution. However, there were five boxes in relation to which he was fully confident they were [Employment Tribunal Proceedings] that could be returned and that was being arranged…

30. In fact, the claimant did not attend Mr Ingram on 7 January to collect any papers. Instead, Mr Ingram was told that a representative from Radcliffes would call for them. That duly happened and the representative collected five boxes, as Mr Ingram had indicated could be done in his conference with Russell-Cooke. Before that happened Mr Ingram had e-mailed Radcliffes to say that it was unfortunate that the claimant would not be coming "as there are a number of files which may relate to the Employment Tribunal matter but may also relate to other proceedings. My expectation was that he would be able to assist."
31. Instead, a member of the firm - a Ms Sokhal - who had conduct at that time of the Employment Tribunal Proceedings on the claimant's behalf attended at Mr Ingram's chambers the next day, 8 January, to inspect and identify further files in Mr Ingram's custody relating to the Employment Tribunal Proceedings. She apparently identified 60 such files. Mr Ingram felt unable to agree that the files should simply be released to her since, in his view, she had an incorrect understanding of the scope of what could be properly considered to be files which the claimant could claim. He made clear that he could only release the files after they had been copied.
32. Radcliffes later wrote to object to this course on various grounds. They included the delay given the need for the claimant to have them in readiness for the strike-out hearing in the Employment Tribunal later in the month. Mr Ingram e-mailed a reply in which he repeated his wish to have the files in question copied but that, in view of the stated urgency, he had already arranged for that to be done and hoped that the process could be completed by first thing on Monday 12 January. Radcliffes continued to object to this. But Mr Ingram maintained his insistence on following this course. He was able to say that photocopying would begin the following day, Friday 9 January, that the originals of the files copied during Friday could be collected by 5 pm that day and that the originals of the remaining files could be collected following copying by the end of Monday, 12 January. In response to Radcliffes' repeated challenges to his involvement, Mr Ingram stated that he was copying the material to be released because as independent counsel he considered that to be the correct course. He referred to decided authority on the role of independent counsel and stressed that:

"The purpose of independent counsel is exactly what it says. To be independent of the litigation, view the material, hear representations and therefore avoid either party being advantaged."

33. Still not satisfied with Mr Ingram's position in the matter, Radcliffes stated that they had instructions from the claimant "to issue proceedings tomorrow [ie 9 January] for an order that you deliver up the originals and all photocopies." The e-mail continued:

"In a final attempt to avoid those costs, I would invite you to take further instructions from Russell-Cooke as to whether they are content for you to release the documents without copying them and to advise me by 10 am tomorrow morning whether you have instructions to release the originals and any copies you have taken."

34. That evening, Mr Ingram received three further "archived" boxes from Russell-Cooke. He emailed Russell-Cooke the following day (with a copy to Radcliffes) to say that in one of the boxes there was a folder which related to the Employment Tribunal Proceedings which should be released directly to Radcliffes and would be available for collection from his chambers during office hours. His e-mail stated that he would retain the papers which were not "unequivocally" part of the Employment Tribunal Proceedings and arrange for them to be copied so that the originals could be retuned to Radcliffes.
35. In his witness statement Mr West described this further disclosure as "alarming" and said that the claimant was understandably concerned that Russell-Cooke continued to hold papers relating to his case. In his witness statement in response, Mr Gould stressed that the documents in question were sent to Mr Ingram "unexamined by anyone at Russell-Cooke" and that this was made clear in a letter from his firm to Radcliffes. Mr Gould made the point that the documents in question had been identified in the course of the scheduling exercise which he had described earlier in his witness statement (and which was referred to in paragraph 10 of the attendance note of 18 December 2008 set out in full at paragraph 16 above) whereby administrative staff at Russell-Cooke were tasked to schedule the contents of the remainder of the 1600 boxes taken on the intervention and were to do so by reference to the spines and file covers. As he put it in his witness statement: "This episode is simply an example of the additional protection working as intended."
36. On 13 January 2009 Russell-Cooke wrote at length to Radcliffes to explain the reasons for and nature of Mr Ingram's appointment as independent counsel and how he had been selected. The letter summarised the steps Mr Ingram had taken to determine whether papers removed from the firm's office as the result of the intervention were privileged and could therefore be released. It set out, so that the position should be contained in a single letter, what papers had been released by Mr Ingram, starting with the release to Ms Turbin of three boxes of documents during the intervention itself on 15 December and culminating in the visit by Ms Sokhal to Mr Ingram's chambers on 8 January. It referred to the difference of opinion between her and Mr Ingram over whether her claim to privilege in respect of the contents of 26 of the boxes was well founded and the arrangements made by Mr Ingram to have the contents photocopied with a view to the original files being handed back the firm. (I should say that there is some confusion in the evidence as to whether the originals of the files would be retained, and the photocopies released to the firm, or vice versa; the true position appears to be, as I was told by Mr Ingram and I accept, that the original files, after photocopying, were released to the firm and the copies retained by him.)
37. Following this exercise 29 boxes of papers were released to the firm.

The claimant's complaints: Mr Ingram's role

38. Almost the whole of Russell-Cooke's letter of 13 January is concerned with Mr Ingram's role. This is doubtless because, up to that time - 13 January, the main concern of the claimant (and those advising him) and his former firm appears to have been with Mr Ingram's position and the basis on which he was permitted to have custody of the files of the firm (and, in particular, papers within those files relating to the Employment Tribunal Proceedings). Before me, at any rate in Mr Adair's submissions, the focus was rather different. It was principally directed to Russell-Cooke's two-fold role (as solicitors engaged on the SRA's behalf to effect the intervention into the firm's practice and as the solicitors retained by the SRA in the Employment Tribunal Proceedings) and the possibility that, despite the arrangements made by Russell-Cooke when the intervention started, members of Russell-Cooke engaged in the intervention might have read documents over which the claimant is entitled to assert privilege and, having read the documents, might, advertently or inadvertently, pass on information from those documents to persons, whether within the SRA or within Russell-Cooke, concerned with the defence to the Employment Tribunal Proceedings. Mr Ingram's role was distinctly secondary to this. Mr Adair also drew attention to five particular aspects of Russell-Cooke's involvement which, he submitted, justified the relief now claimed.
39. Dealing first with Mr Ingram's role, Mr Adair criticised the very notion of counsel, instructed by Russell-Cooke acting on behalf of the SRA, being independent. He submitted that Mr Ingram could not be independent as he was taking his instructions from Russell-Cooke and was SRA's agent. Moreover, he submitted, he was not in fact independent.
40. In my judgment this criticism was unjustified. The mere fact that Mr Ingram was appointed at the instigation of Russell-Cooke acting on behalf of the SRA does not mean that he was not independent in the sense intended by his instructions, and as understood by Mr Ingram, and therefore that he could not in law and in fact act independently so as to preserve the firm's (and if different, the claimant's) legal professional privilege over documents in the firm's custody. The obvious purpose of this arrangement was, as I have mentioned, to ensure that the documents in question should not come to the knowledge either of the SRA or of others (for example members of Russell-Cooke) who would be advising or acting for the SRA in respect of any matters where the firm or the claimant should be entitled to assert legal professional privilege against the SRA. Given the Employment Tribunal Proceedings it was obviously sensible for independent counsel to be instructed (or some like arrangement set up) to ensure that privileged documents relating to the Employment Tribunal Proceedings did not come into possession of the SRA. This would have been so even if solicitors other than Russell-Cooke had been retained by the SRA in its defence of those proceedings.
41. Mr Ingram, who represented himself before me, explained, and I accept, that he has acted as independent counsel in search and seizure actions for the police and in other contexts and is very experienced in such matters. He explained, and I have no reason to doubt, that he had (and has) a full awareness of his responsibility as independent counsel in this intervention to preserve from inspection by the SRA and its advisers documents he should come across over which the firm or the claimant could claim legal professional privilege in connection with any dispute with the SRA. Having heard Mr Ingram it is obvious that he has had this elementary and fundamental point fully in mind when reviewing the many files uplifted to his Chambers and that there is not the least evidence either that he has acted contrary to this duty or that there is any risk that he will do so in the future.

The complaints: Russell-Cooke's role

42. Mr Adair submitted that Russell-Cooke (and Mr Gould in particular) had a conflict of interest. He referred to paragraph 15 of Mr Gould's witness statement in which Mr Gould mentioned the SRA's concern, on an intervention in a solicitor's practice, to protect the interests of the intervened solicitor's clients, and submitted that this was a duty to which Russell-Cooke, as the solicitors acting for the SRA in the intervention, were also subject. He pointed to Russell-Cooke's separate duty, as solicitors acting for the SRA in the Employment Tribunal Proceedings, to bring to SRA's attention information that might come to it relating to those proceedings and submitted that the two duties were in conflict. He submitted that the arrangements set out in Russell-Cooke's note of 18 December 2008 were inadequate as a means of resolving that conflict. He referred to observations of Lord Millett in Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 at 237-8 and submitted that the arrangements which Russell-Cooke would have to set up in order to prevent the seepage of confidential information from those persons in Russell-Cooke engaged on the intervention to those engaged in SRA's defence of the Employment Tribunal Proceedings were, like the arrangements which KPMG had put in place in Bolkiah to secure that no improper disclosure would occur, inadequate, ad hoc in nature and not of the "organisational nature" (echoing Lord Millett's language) to create the effective Chinese wall that was required. He submitted that, consistently with what Lord Millett said in that case, the burden was on Russell-Cooke to establish that it had set up an effective Chinese wall and that, on the evidence, it had failed to do so. He indicated that consideration was being given to an application by the claimant to restrain Russell-Cooke from acting further on behalf of the SRA in the Employment Tribunal Proceedings.
43. In my judgment, the situation in Bolkiah is not analogous. As the headnote in that case makes clear, KPMG, the defendants to Prince Jefri's claim, were the auditors for a Brunei Government investment agency and had been retained by Prince Jefri, at a time when he was chairman of the agency, to provide forensic accounting services and litigation support in litigation which Prince Jefri became involved in relating to his financial affairs. In the course of so doing KPMG came into possession of highly confidential information concerning the extent and location of Prince Jefri's assets. Sometime after the litigation had settled and Prince Jefri had ceased to be the agency's chairman, KPMG were retained by a Brunei Government taskforce which had been set up to investigate the activities of the agency during the period when Prince Jefri had been its chairman. KPMG's role was to investigate the whereabouts of certain assets of the agency which were said to have been used by Prince Jefri for his own benefit. KPMG took steps to establish a Chinese wall to prevent the flow of information from those within KPMG who had acted for Prince Jefri in his litigation to those acting in the agency's investigation. Prince Jefri, however, was not satisfied and brought proceedings against KPMG alleging breach of confidence. He sought an injunction to restrain them from acting for the agency. In this, he was ultimately successful. The House of Lords held that where it was established that solicitors, or accountants providing services such as those provided by KPMG, were in possession of information confidential to a former client which might be relevant to a matter in which they were instructed by a subsequent client the court should intervene to prevent the information coming into the hands of anyone with an adverse interest unless it was satisfied that there was no real risk of disclosure.
44. But whether a solicitor who has formerly acted for client A and subsequently acts for client B in proceedings against client A is subject to a continuing duty to preserve the confidentiality of information imparted to him during the subsistence of his retainer by client A must depend on whether and to what extent the solicitor has come into possession of any information confidential to the former client. This will depend on the facts. There is no presumption that merely because the solicitor is acting for client B against the former client A there is any risk of a breach of confidence. Thus, at page 235 of Bolkiah Lord Millett said:

"Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters. But given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case."

A little later, at page 237, Lord Millett considered what the consequences were once it was found that the solicitor (or similar adviser) had come into possession of information confidential to the former client while acting for that client. He observed that:

"Once the former client has established that the defendant firm is in possession of information which was imparted in confidence and that the firm is proposing to act for another party with an interest adverse to his in a matter to which the information is or may be relevant, the evidential burden shifts to the defendant firm to show that even so there is no risk that the information will come into the possession of those now acting for the other party. There is no rule of law that Chinese walls or other arrangements of a similar kind are insufficient to eliminate the risk. But the starting point must be that, unless special measures are taken, information moves within a firm. In MacDonald Estate v Martin 77 DLR (4^th) 249, 269 Sopinka J said that the court should restrain the firm from acting for the second client 'unless satisfied on the basis of clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur.' With the substitution of the word 'effective' for the words 'all reasonable' I would respectfully adopt that formulation."

45. Here, since Russell-Cooke has never acted for the claimant there can be no conflict of interest of the nature discussed in Bolkiah. Moreover, as Mr Hodge Malek QC, appearing for the SRA and Mr Gould, pointed out, SRA's instructions to Russell-Cooke, as shown by the note of 18 December and as confirmed by Mr Gould's evidence, was that, in effecting the intervention, they were not to read any file containing documents over which the claimant could assert legal professional privilege but, in case of doubt, were to send the file to Mr Ingram to determine whether privilege could be claimed. The question rather, and it is the real and only question which arises, is whether as a result of the intervention anyone in Russell-Cooke has come into possession of information confidential to the claimant in connection with his claim against the SRA in the Employment Tribunal Proceedings and, if that has happened, what steps have been or can now be taken to prevent such information coming into the possession either of the SRA or of any member of Russell-Cooke acting for the SRA in the Employment Tribunal Proceedings and whether those steps are effective.
46. The only source of information (whether covered by legal professional privilege or otherwise) confidential to the claimant which could plausibly be said to have come into Russell-Cooke's possession and which could give rise to any conflict of interest necessitating the establishment of a Chinese wall or, failing that, Russell-Cooke's withdrawal from one of its two roles on behalf of the SRA must derive from documents taken as a result of the intervention the contents of which have come to Russell-Cooke's notice. The onus lies on the claimant to establish, by credible evidence, that this has happened. Unless he can do so, any question of Russell-Cooke having to demonstrate that it has set up an effective Chinese wall between those in the firm who are in possession of the claimant's confidential information and those within the firm who are acting for SRA in the Employment Tribunal Proceedings simply does not arise. This burden is not discharged merely by showing that Mr Gould was appointed intervention agent of the SRA in the intervention in the firm's practice or that Russell-Cooke is acting in the matter. Nor is it discharged by showing that, in the course of the intervention, boxes of files have come into Russell-Cooke's custody among which are documents containing such confidential information. The claimant must go further than that. He must show, and on an application such as the one before me he must produce credible evidence to indicate, that Mr Gould, or persons within Russell-Cooke, have opened a file or files and have read documents containing the confidential information. Nor is this burden discharged by showing that Mr Ingram, as independent counsel, has had access to any such documents.
47. On the evidence which has been laid before me, I am of the view that the claimant has not begun to discharge this burden.
48. That leaves the five particular matters to which Mr Adair referred.
49. The first was Russell-Cooke's recent disclosure - and delivery to Mr Ingram - of three boxes of files which were among those which Russell-Cooke had taken into custody and which they thought might contain (and in one respect did contain) privileged material. I have already referred to this incident. There is no evidence to indicate that anyone from Russell-Cooke read the contents of any of the files, much less any privileged material. As Mr Gould pointed out, this episode showed how the arrangements set up to ensure that privileged material would not be read by anyone at Russell-Cooke or the SRA was working as intended.
50. The second was the fact that steps had been taken by an independent third party to scan the contents of the firm's computers. This matter was referred to briefly in Russell-Cooke's letter of 13 January to Radcliffes. The letter referred to the material being retained and held by the third party contractor in question (described in that letter as independent of Russell-Cooke) and stated that in due course "we [Russell-Cooke] will provide the parties with a list of the materials scanned in respect of which claims to LPP can be made. The material has and will remain unexamined by this firm or the SRA in the meantime." On 15 January, two days after that letter was sent, Russell-Cooke circulated to Radcliffes, the firm (by then called J Tehrani Solicitors) and another firm of solicitors called Richard Nelson Solicitors (acting, as I understood it, either for the firm or for the claimant: the position was not wholly clear to me), a list of the electronic files on the firm's computer server. Mr Adair expressed concern about access to the copied files. But, as Russell-Cooke's letter of 15 January made clear, the files in question have not been read by Russell-Cooke in case any of them might contain documents subject to privilege; the only person who has considered the files has been the administrator from Russell-Cooke who had received the files from the independent computer firm. A copy of the scanned files list was in evidence. It runs to 69 pages of hard copy. It is merely a list of files with an indication of the file size, its date of creation and date of latest accessing. The very abbreviated file name gives no indication of what the files actually contain. Any concern over the reliability of Russell-Cooke's assurances not to access the contents of these files until the question is either resolved by agreement or decided by the court is, in my view, unjustified.
51. Third, Mr Adair referred to the fact that, at the intervention on 15 December, a quantity of loose papers was collected. He submitted that there was, in consequence, a concern that those papers might include privileged documents and therefore that there existed a risk that persons from Russell-Cooke might have read them. This was not a matter mentioned in the written evidence filed in support of this application. Rather, it was raised by Mr Adair in the course of his submissions. On instructions, Mr Malek told me, and I accept, that during the course of the two days of the intervention, loose papers were put into a box unopened and unexamined and that this only occurred after the firm's representatives present at the intervention had been offered the chance to assert privilege over them. On investigation, therefore, there was nothing in this further matter to give rise to any concern.
52. Fourth, Mr Adair submitted that there was a basis for legitimate concern over another exercise carried out by Russell-Cooke's administrative staff - it was one which Mr Malek mentioned to me - namely the compiling of a database of the firm's clients, ascertained by opening each file to establish the client's name and address, so far as not evident from the file cover. I am wholly unpersuaded that opening a file for the purpose of compiling a client database gives rise to any legitimate basis for concern on the claimant's part. It seems to me to be a prudent step to enable clients to be identified and contacted. It has nothing to do with the claimant's claims against the SRA.
53. Fifth was the fact that the files relating to up to 20 matters had been opened and read by Russell-Cooke's legally qualified staff. This last had occurred, as I was told and accept, because there were matters in those files which required urgent attention. It did not involve the opening of any files relating to the claims in the Employment Tribunal Proceedings.

Conclusion

54. I have dealt in this judgment in some detail with the communications passing between the parties and the other evidence that has been filed because it is abundantly clear to me that the procedures put in place by Russell-Cooke (including the instruction of Mr Ingram as independent counsel) have successfully ensured that no one in Russell-Cooke engaged in the Employment Tribunal Proceedings has seen any material which is or might be subject to privilege in the claimant. Indeed, the procedure has meant that, subject to the exceptions to which I have referred, the firm's client files have not been examined by members of Russell-Cooke (whether partners or others) engaged in the intervention. I am satisfied that there is no significant risk that any of these persons will have access to any documents over which privilege in the claimant may be claimed such as to justify the relief claimed on the application which has been before me.
55. In these circumstances, as I indicated at the conclusion of the hearing of submissions, I am not willing to grant any of the relief sought. Apart from anything else the correspondence which has been laid before me, supplemented by Mr Gould's witness statement, more than adequately explains the steps taken and the rigour with which this matter has been approached to ensure that material in respect of which the claimant is entitled to claim privilege (or which is otherwise confidential to him) is not seen by the SRA and those advising the SRA in the Employment Tribunal Proceedings. Moreover, it is a continuing process. I am therefore wholly unpersuaded that the claimant has any legitimate concern that these steps have not been and will not continue to be effective.
56. Finally, and for the sake of completeness, I should mention that Russell-Cooke intends to seek directions of the court in order to resolve the claims made by the firm and the claimant to privilege in respect of quite a number of the files which Mr Ingram took into his custody (and, after photocopying, released back to the firm) where Mr Ingram is not satisfied that the claims are justified. This will be part of a wider application for directions in the intervention. I understand, and accept, that pending that hearing Russell-Cooke has no intention of reading the contents of the files in question.

Postscript

57. As I have mentioned, this application was said to be urgent - and an expedited hearing was sought - on the basis of the impending proceedings in the Employment Tribunal between the claimant and Law Society listed for a hearing starting on 21 January 2009. The implication of the relief claimed was that the defendants had, and should return to the claimant, documents material to the impending hearing and should be required to identify what had happened to them. Mr West's witness statement on behalf of the claimant stated in terms that the files were needed "as a matter of urgency" because of the three-day hearing starting on 21 January. Except that the hearing was to determine a strike-out application I was told nothing about the hearing.
58. It therefore came as a surprise when, on the second day of the hearing before me, Mr Malek showed me a copy of a letter which the claimant had sent the previous day to the Central London Employment Tribunal (where the Employment Tribunal Proceedings were taking place) in which the claimant referred to the application, due to start the following day, as a strike-out by the SRA "on the basis that the SRA are not bound by the Race Relations Act." I say "surprised" because it is difficult to see why, on what would appear to be a pure point of law, the claimant needs urgent access to any documents relating to the Proceedings, let alone any which he believes the defendants still possess. I have therefore been left with the impression as a result of the claimant's own letter that there is in truth no basis for any urgency in the application before me.
59. At paragraph 4 of the same letter, the claimant stated that shortly after a CMC hearing in the Employment Tribunal Proceedings "the SRA attended Dean & Dean's offices and forced an inspection of certain files for no reason other than as a result of articles they had read in the Daily Mail newspaper about me and Dean & Dean." This was quite contrary to Pitchford J's conclusions in November 2008. Indeed, the letter made no mention at all of the proceedings in the Queen's Bench Division which resulted in that judgment. Whether intentionally or not, this failure gives to the reader of the letter who is unaware of that episode a distorted and inaccurate impression of the position.
60. In paragraph 9 of the letter, the claimant stated that Radcliffes "…have continuously tried on numerous occasions to get my files back from Russell Cooke/SRA". He referred to Russell-Cooke as the firm representing the SRA in the Employment Tribunal Proceedings and as "the very firm who removed the files from Dean & Dean". He continued:

"10. Despite this clear conflict, Russell Cooke refused to hand over the documents insisting on a game of cat and mouse to avoid returning my files for as long as possible to damage my case and prejudice this hearing as much as possible in order to prevent me from being able to be fully represented at the hearing tomorrow."

Aside from the allegation of a "clear conflict" (which I have already discussed and rejected) there is not the slightest shred of evidence to suggest that Russell-Cooke have acted in the way suggested to avoid returning the claimant's files, let alone that they have done so to damage his claim in the Employment Tribunal Proceedings and prejudice the hearing due to start on 21 January. It is a quite groundless allegation.

61. In paragraph 14 of the letter the claimant complained that the files returned to him had been "put together in a deliberately confusing and incoherent manner" and went on to state his belief "that this has been a deliberate concerted effort by the SRA/Russell Cooke in order for them to be able to look at my privileged files and to cause me to be at a considerable disadvantage at the hearing". Again, it is a suggestion which has not the slightest evidential support.
62. A note prepared by leading counsel representing the SRA in the three-day hearing before the Central London Employment Tribunal, and made available at the same time as the claimant's letter to the Tribunal, records the claimant as stating to the Tribunal earlier that day, 21 January, that Russell-Cooke had been chosen to act in the intervention "with the intention that his [the claimant's] documents (especially his privileged Opinions etc) could be seized and read by them so as to damage his case in the Tribunal" and that "Russell-Cooke had read his privileged documents (including Opinions as to the issues for determination at the PHR) and that his counsel in the High Court [a reference to the proceedings before me] had demonstrated this and that Russell-Cooke was unable to provide appropriate answers." Mr Adair did not seek in any way to associate himself with his claimant's representations to the Employment Tribunal. And rightly so. They are wholly without substance. Since, so far as I am aware, the claimant has not been present during the hearing before me - and I cannot think that those representing him before me could have told him that Mr Adair had demonstrated that Russell-Cooke had read any of his privileged documents - the inference can only be that the claimant has deliberately set out to mislead the Employment Tribunal.