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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> TINTO, PETITION: KAE ALEXANDRA TINTO OR MURRAY FOR INTERDICT [2019] ScotCS CSOH_21 (07 March 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_21.html
Cite as: 2019 Fam LR 26, 2019 SLT 424, 2019 SC 403, 2019 GWD 10-131, [2019] ScotCS CSOH_21, [2019] CSOH 21
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OUTER HOUSE, COURT OF SESSION
[2019] CSOH 21
P968/18
OPINION OF LORD BRAILSFORD
In the petition
KAE ALEXANDRA TINTO or MURRAY
for interdict
Petitioner
Petitioner: McBrearty QC, Innes; SKO Family Law
Respondent: Duncan QC, Byrne; Turcan Connell
7 March 2019
[1] The petitioner seeks to interdict a firm of solicitors (“TC”) from acting in divorce
proceedings she has raised against her husband, Sir David Murray (“SDM”).
Background
[2] The background to this petition can be stated briefly. The petitioner and SDM were
married in 2011. Prior to their marriage they entered into a pre-nuptial agreement
regulating financial affairs in the event of the marriage terminating in divorce. TC are a
Scottish firm of solicitors specialising in private client work. They were formed in 1997 and
since that time had acted on behalf of SDM in connection with his private affairs. They acted
for SDM in the negotiation and preparation of the pre-nuptial agreement. The petitioner
was represented in the negotiation and preparation of the pre-nuptial agreement by a
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2
solicitor, Noel Ferry then Head of Family Law in another firm of solicitors, Maclay Murray
& Spens. In 2013 Mr Ferry joined TC initially as a senior associate and from April 2015 as a
partner working in that firm’s Glasgow office in the field of family law. Since joining TC
Mr Ferry has not acted for nor had any dealings with the petitioner. Since her marriage to
SDM the petitioner has on a number of occasions instructed and obtained advice from
another partner of TC, Mr Peter Littlefield. Mr Littlefield is a partner dealing primarily with
trust and tax matters for private clients. It was in this area of expertise that the petitioner
sought the advice of Mr Littlefield. On 22 March 2018 the petitioner and SDM separated.
The petitioner instigated divorce proceedings in this court against SDM by summons
signeted on 22 May 2018. The petitioner was represented in the divorce proceedings by a
firm of solicitors specialising in family law, SKO. Defences were lodged on behalf of SDM
on 19 June. He was represented by TC. In the divorce proceedings the petitioner seeks to
set aside the pre-nuptial agreement and, further, makes financial claims both in relation to
capital and aliment. That action proceeded uneventfully throughout the summer of 2018.
By interlocutor of 12 July a proof date was fixed for 5 February 2019 and seven subsequent
days. At a scheduled by order case management hearing on 11 September the petitioner
raised the issue of potential disclosure of information confidential to her by TC. On
14 September the petitioner sought to introduce by way of Minute the contention that it was
inappropriate for TC to continue to act in the divorce. The Minute, as a step in the divorce
proceedings, was directed at SDM albeit that it was formally intimated to TC for any interest
they may have. I declined to allow the Minute to be received on grounds of competency.
Subsequently the present petition was presented on 18 September.
[3] The petition raises issue of the appropriateness of TC continuing to act in the divorce
proceedings when they are contended to possess information confidential to the petitioner.
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3
The information claimed to be confidential falls into two broad categories. First, information
in the nature of “retained knowledge”, that is information for which there are no documents
but which depends on the memory of a person. In the circumstances of the present matter
the petitioner contends that Mr Ferry has retained knowledge in relation to the petitioner’s
affairs arising from his involvement on her behalf, albeit when employed by a different firm
of solicitors, in the preparation and negotiation of the pre-nuptial agreement. The second
category is information of a confidential nature said to be contained in two files compiled by
Mr Littlefield when giving private client advice to the petitioner during the tenure of her
marriage. It is to be noted that although the hard copies of these files were passed by TC to
SKO in implement of a mandate in June 2018, TC retain within their IT system electronic
copies of the files.
[4] Procedurally, as a result of concerns expressed by the petitioner, an arrangement was
made, with the approval of the court, to allow counsel instructed on behalf of TC and a
named partner of that firm to consider the two files said to contain information confidential
to the petitioner. The partner permitted to have access to the files had no previous
involvement in the affairs of the petitioner or SDM. He had not, and going forward will not,
take any professional role in the divorce proceedings. I should also note that the partner
and assistant in TC conducting the divorce proceedings on behalf of SDM took no part, and
were indeed excluded, from any consideration and involvement in the present petition. The
hard copies of the two files said to contain the confidential information were produced in a
sealed envelope to the court prior to a hearing on the petition and answers lodged thereto
which took place on 2 November when I considered the issue of confidentiality. With the
permission of both parties the envelope was opened at the commencement of the hearing on
2 November and thereafter has been considered by myself. Orders under section 11 of the
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Contempt of Court Act 1981 preventing publication of the proceedings on 2 November were
pronounced, unopposed, by interlocutor of the court dated 30 October 2018. In addition,
again on an unopposed basis, an interlocutor was pronounced on the same date in which
those parts of the proceedings in which information said to be confidential were discussed
were held in closed court. The reason for these, admittedly rather unusual, steps being
taken was to preserve the integrity or confidentiality of any information pending a final
decision on the issues of confidentiality and representation of SDM.
[5] As will subsequently be elaborated upon at the conclusion of the hearing on
2 November an opportunity was given to TC to allow them, if so advised, to provide further
information. To enable that to occur the hearing was adjourned and a further hearing
arranged for 30 November 2018.
[6] The petitioner’s position was that the issue of whether TC should be allowed to
continue to represent SDM had two distinct components. The first, characterised as
dominant, consideration was the issue of confidentiality. The second was a more general
consideration in which, seeking to invoke the inherent power of the court to supervise its
officers, it was contended that the administration of justice, including the appearance of
justice, required to ensure the integrity of justice in circumstances where a firm of solicitors,
or members of that firm, had knowledge of a confidential nature belonging to a former client
and where the solicitors acted for a person now involved in either litigation or who was in
dispute with the former client.
Law
[7] In relation to the legal framework underlying both heads of the petitioner’s
argument there was broad agreement between the parties as to the relevant principles. In
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respect of the application of the court’s inherent power and the integrity of the judicial
process it was a matter of agreement that the Inner House decision in Ecclesiastical Insurance
Office Plc v Lady Whitehouse-Grant-Christ1 was, insofar as applicable, binding on this court.
The facts in that case were marginally different than these in the present case. In 2000 the
defence made a claim for indemnity under a policy of insurance with the pursuers. The
pursuers sought to avoid the policy on grounds of material non-disclosure and served a
summary in an action seeking reduction of the policy in October 2000. A solicitor was
consulted by the defender at or about that time. His dealings with the defender lasted about
six weeks. Thereafter the defender instructed other solicitors. Defences were lodged but in
October 2002 the action was sisted, and remained so until March 2012 when the sist was
recalled and the defender lodged a counter-action. A debate took place in February 2015
and the counterclaim was dismissed. The defender reclaimed and in March 2016 an Extra
Division recalled the decree of dismissal and allowed a proof-before-answer. In
September 2016 the defender brought to the court’s attention that the pursuers had
instructed new solicitors and that the solicitor who had acted for them for a period of six
weeks in 2001 was a consultant to that firm. The defender submitted that both the firm and
senior counsel instructed should withdraw from acting for the pursuers, following which
interdict should be pronounced against them on the ground of conflict of interest. The court
decided that having regard to the solicitors in 2001’s limited involvement there was no real
risk that relevant confidential information might come into the hand of a person with an
adverse interest. In considering the solicitors where a fair-minded person would conclude
that an officer of court should be prevented from acting in order to protect the integrity of
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the judicial process the applicable test, enunciated by Lord Bracadale2 was to the effect that a
solicitor should be prevented from acting if a fair minded person would conclude that that
course was necessary in the interests of the integrity of the judicial process and the due
administration of justice, including the appearance of justice. No issue was taken with this
characterisation of the test by counsel for TC.
[8] In relation to the issue of confidential information both parties were again agreed
that the leading authority was a decision of the House of Lords, Prince Jefri Bolkiah v KPMG
(a firm)3. The tests which were said required to be surmounted before a solicitor could be
restrained from acting for a party in a litigation are set down authoritatively in the speech of
Lord Millet4 in the following terms:
“Accordingly, it is incumbent upon 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.”
Again there was no dispute as to the applicability of the tests adumbrated by Lord Millet in
the foregoing passage. It was also agreed that these tests had been considered, in a variety
of factual circumstances in a number of cases which followed from Bolkiah (supra). My
attention was drawn to Georgian American Alloys Inc v White & Case LLP5; Marks and Spencer
plc v Freshfields Bruckhaus Deringer6; Koch Shipping Inc v Richards Butler7.
2 at paragraph 11
4 at page 235 D/E
5 [2014] 1 CLC 86
6 [2005] PNLR 4
7 [2003] PNLR 11
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7
Petitioner’s argument at first hearing
[9] The petitioner argued that in relation to confidential information the tests in
Bolkiah (supra) were met in the circumstances of the present application. It was contended
that within the file recovered from TC there was information confidential to the petitioner.
The petitioner had not waived her right to confidentiality. The material was not in the
public domain. The material, which was of a financial nature, enabled a fair reader of the
file to have a reasonable understanding of the petitioner’s financial affairs. The information
was directly relevant to her claims in the divorce action. Beyond that the information if it
became known by SDM would or at least might assist him in any consideration of matters
which might arise in the course of any discussions anent settlement of the matters at issue.
These considerations applied in relation both to the issues arising out of the pre-nuptial
agreement and in the wider context of the divorce action in general.
[10] Developing this argument counsel for the petitioner identified two separate sources
where TC held information contended to be confidential to the petitioner and material to the
divorce proceedings. The first source was information held by Mr Ferry as a result of his
having been the petitioner’s advisor in relation to the pre-nuptial agreement. The second
was the two files relating to work done by Mr Littlefield on behalf of the petitioner during
the course of the marriage.
[11] In relation to Mr Littlefield’s files the submission was that they “plainly contained”
material which was confidential to the petitioner. It was contended that
“even a cursory read of the file demonstrates that it contains information relating to
the petitioner’s personal finances, interest in a family trust, property dealings and
personal arrangements relating to succession.”
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8
That submission was developed by reference to particular passages in the files.8 My
attention was drawn to entries at pages 5, 9, 16-25, 216, 219 and 323. Counsel for the
petitioner characterised the information contained in the passages to which he adverted as
relating to the petitioner’s personal financial circumstances. The entries encompassed
material covering the petitioner’s understanding of SDM’s assets at a given date, the nature
and extent of her entitlement as a beneficiary in certain trust funds, the value of the trust
funds, potential future values of development land held by a trust in which she was a
beneficiary and her personal assets at given dates. Counsel for the petitioner accepted a
characterisation of the information suggested by me as giving a reader of the file a
reasonably clear view of the petitioner’s financial position.
[12] All the information contained in the files and identified by counsel as confidential
was said to constitute material which may be relevant in the divorce proceedings and,
further and importantly, knowledge of which was potentially prejudicial to the petitioner’s
interests. In relation to this submission, again on questioning by myself, counsel submitted
that the matter of potential prejudice in the context of the divorce proceedings required to be
determined as at the date the present petition was being determined. On that basis the
situation which required to be considered was of extant divorce proceedings where a proof
had been allowed. The proof had not been split, for example by way of preliminary proof in
relation to the status of the pre-nuptial agreement. It was not appropriate for this court in
this petition to consider every possible procedural possibility that might develop in the
course of the proof. It was also inappropriate to proceed on the basis that none of the
information in the files would ultimately prove to be confidential because of an obligation
upon the petitioner to disclose all matrimonial property or, further, non-matrimonial assets
8 The two files were numbered sequentially
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9
which might be relevant as a potential source of funds. To do so would require speculation
in relation to the possible course the divorce action would take, which would be illegitimate
and inappropriate at this stage. It would also leave out of account more intangible aspects
of confidentiality, such as the impact disclosure of confidential information might have on
any extra judicial settlement negotiations which might occur. In that regard my attention
was drawn to the fact that there was information before the court vesting it with knowledge
that there had already been correspondence anent settlement negotiations between TC and
the petitioner’s agents.9 I was lastly reminded that on the authority of Bolkiah (supra)
although the burden of proving that TC were in possession of information confidential to
the petitioner and, further, that such information is or may be adverse to the interest of the
former client, that burden on the petitioner was not a high one.10
[13] In relation to the risk of disclosure counsel for the petitioner recognised that each
case turned on its own particular facts and that, depending on the circumstances of the
given case, it might be possible to devise security measures sufficient to protect the
confidentiality of information owned by a person in the position of the petitioner and
thereby negate the risk of disclosure. Those security measures were referred to as an
“information barrier”. The generality of the submission was that the steps in that regard
taken by TC were inadequate and insufficient to protect the petitioner’s legitimate rights in
relation to the confidentiality of information held by TC. It was, further, observed and
submitted that in the context of a legal firm information does not simply move as a result of
information discussed directly between partners or those who had direct access to the
confidential information. Information has the potential to move between other qualified
legal staff but, in addition, between trainees, secretaries and support staff. Information can
9 Affidavit of Gillian Crandles dated 9 October 2018 at paragraph 11
10 Bolkiah (supra) per Lord Millet at page 235 D/E
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10
be inadvertently passed even by persons not having had sight of documents but who may
have been party to conversations where such matters are discussed. Information can be
disclosed even when there is no intention of deliberately breaching confidentiality.
[14] In regard to these submissions, and what was said to be a heavy burden imposed
upon TC if they were to satisfy the court that there was no risk of disclosure, my attention
was drawn to a number of features of TC’s case. First, TC appeared to rely heavily on a
culture of confidentiality and care for clients confidential data said to operate throughout
the firm. There was no challenge to the proposition that such a culture was encouraged
within TC but it was submitted that this alone would be insufficient to eliminate the risks
which had been identified. Second, even within such a culture, within a firm there was
always a risk of inadvertent disclosure. In that regard my attention was drawn to three
pages in Mr Littlefield’s files11 where correspondence pertaining to a client other than the
petitioner had been inadvertently and incorrectly filed. Third, it was observed that in the
affidavits lodged by TC there was disclosure of some information which is confidential to
the petitioner and to which she had not consented to disclosure. Reference was made to
paragraph 7 of Mr Littlefield’s first affidavit12 in which he details a particular instance of the
petitioner having sought his advice and the reasons why she did so at that time. Similarly
there were passages in the first affidavit submitted by Mr Ferry13 where confidential
information had been disclosed. It was not suggested that the material disclosed in any of
the instances cited contained matters which were germane to the divorce proceedings, nor
was it suggested that there was any deliberate breach of confidentiality by Messrs Littlefield
or Ferry. It was however submitted that these were examples of inadvertent disclosure of
11 At pages 133-135
12 Dated 9 October 2018
13 Dated 9 October 2018
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11
confidential information and their occurrence did “not provide comfort as to the culture of
confidentiality in TC”.
[15] Perhaps more forcefully a fourth concern was developed. This was that no evidence
had been provided by TC to establish who had accessed the relevant confidential
information. It was noted that Ms Crandles deponed that TC
“have largely moved to a paperless environment and our systems would be able to
demonstrate that no one from my team has accessed any documentation or
information pertaining to the petitioner.”14
The submission was developed to observe that modern IT systems would be able to
demonstrate precisely who had accessed which documents and when. No documentary
evidence to demonstrate as a matter of fact who had accessed relevant confidential
information was provided. Furthermore there was no affidavit from any member of IT staff
at TC precisely explaining the nature of their system, how it could be accessed and that
checks had been conducted to show who had had access to the relevant files and when.
Mr Littlefield deponed that his “understanding is that when a file is locked down only those
who have access will know it is there”.15 It was submitted to be important that he did not
explain the operation of “locked down” merely expressed his understanding that it
restricted access to files. Again the lack of a full and cogent explanation as to the operation
of the system in relation to electronic files was said to constitute a significant omission in
TC’s case. No witness provided any technical explanation as to how “lock down” was
achieved. No explanation was provided as to how TC’s system operates so as to achieve
“lock down” or as to who puts a file into “lock down”, how they do so or how that file can
be changed after that event. There was no explanation as to who controlled the security
aspects of “locked down” files and what protocols were in place to control how individuals
14 Affidavit dated 9 October 2018 at paragraph 6
15 Affidavit dated 9 October 2018 at paragraph 8
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12
came to have permission to view a locked down file and how and in what circumstances
such permission could be removed.
[16] Against that background it was submitted that whilst it was accepted that the
extremely elaborate precautionary measures taken in cases such as Bolkiah (supra) and
Georgian American Alloys (supra) would not be necessary in every case, and indeed would not
be necessary in the context of the present divorce proceedings, there was insufficient
evidence in the present case to enable the court to reach a view that sufficient precautionary
measures had been put in place to enable it to form the view that TC had discharged the
onus upon them in this regard.
Respondent’s arguments at first hearing
[17] Counsel for TC accepted that the authorities referred to by the petitioners were
relevant and applicable to consideration of the issue under consideration. He did however
emphasise that each case turned on its own facts. He pointed out that all the cases relied
upon by the petitioners involved matters where confidential information encompassed large
volumes of material and was known by large numbers of persons. This was to be contrasted
with the present case where both the numbers of persons who had direct access to any
material which might be regarded as confidential were small and, in the context of TC, the
potential pool of persons who might, in any circumstances, gain any access by any means to
the material was, at least in the context of the authorities relied upon by the petitioner, very
small.
[18] In relation to the underlying facts counsel for TC, in common with the approach
taken by the petitioners, drew a distinction between the position of Mr Ferry and the matters
contained in Mr Littlefield’s file. The proposition in relation to Mr Ferry, in line with that
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13
made by the petitioners, was that he had no documentary information. Such information as
he possessed all fell into the category of “retained information”. He was, as an enrolled
solicitor, an officer of court. He had proffered an undertaking to the court in his second
affidavit. The terms of that undertaking were sufficient to eliminate any risk which might
exist.16 The undertaking is in the following terms:
“I undertake to the court (a) that I recognise and will continue to abide by my
professional obligations to the petitioner; (b) that, except were required or mandated
by law or professional duty, I have not and will not discuss anything with anyone
from Turcan Connell relative to the divorce action and relative to the pre-nuptial
agreement in particular.”
[19] In relation to the issue of confidentiality and the material in Mr Littlefield’s file
counsel’s general proposition was to query whether the material was truly to be regarded as
confidential. In that regard he submitted that the material was of a general nature. Some of
the material would in any event be within the knowledge of SDM. Some of the knowledge,
for example information pertaining to the development potential of heritable property
owned by the trust in which the petitioner was a beneficiary, would be public knowledge
there having been planning applications in relation to the proposed development of land. In
any event in the context of a divorce action the petitioner would be obliged to disclose in the
context of ascertainment of matrimonial property most of the material contained in
Mr Littlefield’s file.
[20] Even if some of the material were regarded as confidential it was further submitted
that in the context of the factual circumstances of the present case sufficient protections had
been put in place by TC to obviate any risk of disclosure of the information. Reliance was
placed upon the affidavits produced by members of TC and a number of staff in that firm.
Importantly the relevant partners, Mr Ferry, Mr Littlefield, Mr Duguid, who has been the
16 Undertaking contained in affidavit dated 1 November 2018
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14
client care partner for SDM since July 2015 and Ms Crandles have all sworn affidavits in
which they give undertakings in relation to the protection of information within their
knowledge pertaining to the petitioner. The undertakings are all in the terms of those
already noted in relation to the undertaking given by Mr Ferry. These undertakings given
by officers of court are, it was submitted, sufficient to eliminate the risk and concerns
enunciated by the petitioner.
Procedure prior to continued hearing on 30 November 2018
[21] Prior to the hearing on 30 November TC lodged twenty-one further affidavits in
supplement to those produced for the original hearing. In addition counsel for both parties
produced additional notes of argument dealing with issues arising out of the new affidavits.
[22] Twenty of the twenty-one affidavits produced were from employees of TC solicitors,
trainee solicitors and ancillary staff. On the basis of TC’s investigations since the original
hearing these twenty deponents were persons who had accessed the petitioner’s electronic
file held by TC. I was informed by senior counsel for TC that his clients had obtained
affidavits from all persons who had accessed the petitioner’s electronic file with three
exceptions. The exceptions were an employee who was absent from work on long-term sick
leave and about whom a decision had been taken that having regard to her health it would
be inappropriate to disturb the person. The other two persons were former employees.
Neither was a solicitor or trainee solicitor. The electronic record showed that they did not
have extensive contact with the petitioner’s file. Again a decision had been taken that there
was neither need nor merit in seeking to trace and contact these persons in order to obtain
an affidavit. So far as the twenty affidavits from persons who had accessed the petitioner’s
file were concerned the format of the affidavits was very similar. They all explained their
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function in TC at the time when they accessed the petitioner’s file. They explained why they
accessed the file. The majority of them stated they had no recollection of accessing the file
and no recollection of the contents of the file. Many of the deponents also spoke about the
culture of confidentiality which existed within TC.
[23] I require to deal more fully with one of the deponents, Mrs Littlefield a senior
associate with TC specialising in tax and trusts. I will return to Mrs Littlefield’s involvement
during my narration of the arguments advanced by counsel.
[24] I also require to deal more extensively with the evidence of the twenty-first
deponent, Allan Davie.17 Mr Davie is the IT director at TC, responsible for all IT systems, IT
infrastructure, security and IT strategy within the firm. In his affidavit he provided an
overview of the electronic file management system in operation at TC. His evidence was
that the technology utilised by the firm was “designed with a number of key security
features, which have been configured in line with best practice advice at the time the system
was being implemented in 2016.” He continued that “[T]here is a permanent and indelible
record of access to all documents and all work space.”18 He then went on to explain what
was meant by the phrase “lock down” in the context of an IT system such as that operated
by the respondents. The explanation was
“lock down refers to the process of restricting access to a matter work space to a
limited number of staff, using the built in security tools of the iManage system. If
staff are not permitted access to a matter, they will not even be able to see the
description of that matter in the system. The process for ‘locking down’ or unlocking
access is for the Turcan Connell Partner to make a request that the IT team amends
the access to the matter. Only the IT team can change the security access to matter
works basis within the system.”19
17 Affidavit dated 23 November 2018 number 20 of process
18 Affidavit number 20 of process at paragraph 3
19 Affidavit number 20 of process at paragraph 4
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16
Mr Davie indicated that so far as the petitioner’s file was concerned it was locked down at
15.37 hours on 21 September 2018 on the instruction of Mr Peter Littlefield. The instruction
was that after that time access to the file was restricted to Mr Littlefield and Nicola Quinn,
his assistant. Mr Davie appended to his affidavit a number of print offs from TC’s IT
system. As I understood it the print off identified 17 items from the “correspondence”
section of the petitioner’s electronic file as held by TC. The print off showed who had
accessed these 17 items of correspondence, when they did so and for how long.
Petitioner’s submissions at continued hearing
[25] Senior counsel for the petitioner submitted that notwithstanding the significant
volume of additional information produced by TC there were still what he categorised as
“significant deficiencies in the material” relied upon by TC. The submission was developed
to say that TC had still not discharged the burden of demonstrating through clear and
convincing evidence that effective measures have been taken to ensure that there was no risk
of relevant confidential information coming to the notice of SDM or of those now acting on
his behalf.
[26] Counsel for the petitioner made the general point that the new material produced by
TC demonstrated that a total of 19 persons had accessed the petitioner’s electronic file. He
submitted that the information demonstrated that “a very significant number of partners
and staff have had access to the file”. The thrust of this submission was, as I understood it,
to demonstrate the level of risk of inadvertent disclosure of information. On this line of
argument the most significant criticism, however involved the access to the petitioner’s file
by Mrs Littlefield. The information obtained from Mr Davie’s consideration of the electronic
file demonstrates that on two occasions Mrs Littlefield accessed the file for reasons “other
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17
than in order to carryout fee earning administrative or secretarial work”. This part of the
petitioner’s submission was put in the context of the chronology of the litigation between the
petitioner and SDM. The petitioner and SDM separated on 22 March 2016. A summons in
an action of divorce at the instance of the petitioner against SDM was signeted on 22 May
2018. At the beginning of June 2018 Mr Littlefield met with the petitioner and advised that
he could no longer act for her in relation to her trust and personal affairs. She was also
advised that TC were acting for SDM in the divorce proceedings and that, accordingly, TC
could no longer act for her in relation to the divorce. On 4 June 2018 SKO sent a mandate to
TC requiring them to provide SKO with the petitioner’s files. That mandate was complied
with. On 18 June 2018 a partner in SKO emailed Mr Littlefield primarily in relation to
matters arising out of implementation of the mandate. The email did however further ask
for confirmation of what steps TC had
“taken to ensure that any electronic information that you hold on behalf of [the
petitioner] cannot be accessed by anybody within the firm who (i) may act for [the
petitioner’s husband] in the context of the divorce action, and/or (ii) may be a witness
in the divorce action to follow.”
On 11 September at a By Order hearing in the divorce action the issue of a challenge to TC’s
continued representation of SDM was raised. The present petition was presented on
18 September 2018. As previously noted the petitioner’s electronic file held by the
respondents was locked down on 21 September 2018. Senior counsel for the petitioner
observed that against this background on 17 April 2018, which was after the separation of
the petitioner and SDM, Mrs Littlefield accessed a file note relative to a telephone
conversation that Mr Littlefield had with the petitioner on 14 March 2018. That file note is
on page 5 of the hard copy version of the petitioner’s file provided to the court. It is a page
which was founded upon by senior counsel for the petitioner in his original submissions
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designed to demonstrate the existence of relevant confidential information on the file. The
information on that page relates to the petitioner’s financial affairs. On 17 April 2018
Mrs Littlefield accessed the file note for 2 minutes 20 seconds. The submission was that
there was no professional reason for Mrs Littlefield to access the file. The contention of
counsel was that the time during which Mrs Littlefield had access, 2 minutes 2 seconds, was
sufficient for a reader to obtain information from the document. The submission continued
that the information available disclosed that Mrs Littlefield accessed the petitioner’s
electronic file again on 17 July 2018, being a time both after TC had ceased to act for the
petitioner and after the summons in the divorce proceedings had been served. It was also
after the time that the issue of confidentiality and restriction of access to the petitioners
electronic file had first been raised in the email from SKO to Mr Littlefield dated 18 June
2018. On the second occasion Mrs Littlefield accessed a file note of Mr Littlefield dealing
with a conversation he had with the petitioner on 13 May 2018. The document accessed by
Mrs Littlefield on that occasion is to be found on page 4 of the hard copy of the petitioner’s
file. Whilst not containing financial information it was submitted it contained “highly
sensitive confidential information”. The period of access was 2 minutes 32 seconds.
Counsel noted that in her affidavit20 the explanation for accessing the petitioner’s electronic
file on those occasions given by Mrs Littlefield was that she had, in the company of her
husband Mr Littlefield, met the petitioner in the company of SDM at a social occasion. In
the context of a social meeting she deponed in her affidavit that
“She [the petitioner] struck me at the time as being the sort of person that I would
like to include in future invites and it was my intention to keep in touch with her. I
do try when meeting clients to understand what is going on in their lives and believe
that such knowledge does enhance the relationship. Obviously all matters relating to
clients are confidential but clients do appreciate it when they get a sense that they are
genuinely appreciated.”
20 Dated 22 November 2018 number 27 of process
Page 19 ⇓
19
She went on to state further
“I have been asked why I have accessed file notes on the file. I would have done so
simply for the very purpose of being up-to-date. I don’t know now but it may be
that I had in mind inviting [the petitioner] to a Turcan Connell event.”21
Senior counsel for the petitioner submitted that the explanation proffered by Mrs Littlefield
was inadequate. The petitioner was not, and had never been, Mrs Littlefield’s client.
Mrs Littlefield had never acted for the petitioner nor offered her any professional advice. It
was the submission of senior counsel that no proper justification for Mrs Littlefield’s access
to the files had been tendered and that her ability to do so on the dates that she did “simply
demonstrates the extent to which, within the respondent’s office, there is scope for
information moving within a firm”.
[27] The petitioner’s submission was developed to show that any information barrier
which existed within TC in the context of the petitioner’s file was of an “ad hoc” nature and
therefore subject to the general criticism of ad hoc security arrangements made in
Bolkiah (supra) and Georgian American Alloys (supra).
[28] In support of the proposition that, in the context of the present case, ad hoc security
arrangements were likely to be inadequate three principle factors were advanced. The first
was that the petitioner’s file was only “locked down” on 21 September 2018. This was
three days after the present petition had been served upon TC. It was, further, four months
after the summons in the divorce case was signeted and at least three and a half months
after TC had ceased to act for the petitioner. This was said to clearly demonstrate that the
information barrier being relied upon by TC was ad hoc and merely put in place to deal with
contingencies as they arose. I was reminded that in Bolkiah (supra) Lord Millet observed that
information barriers need to be
21 Paragraph 2 and 3 of affidavit number 27 of process
Page 20 ⇓
20
“an established part of the organisational structure of the firm, not created ad hoc
and dependent upon the acceptance of evidence sworn for the purpose by members
of staff engaged on the relevant work”.22
[29] The second ground was that a necessary implication of the date of lock down was
that up to that date there was unrestricted access to the petitioner’s file. A corollary of that
was that TC required to rely upon
“a large number of affidavits in which qualified and support staff set out their best
recollection as to why they accessed the file, whether they recall anything about it
and whether they would have discussed the contents with anyone.”
That consideration increased the level of risk of disclosure of information of a confidential
nature whether inadvertently or otherwise. Reliance was made in this respect to
observations of Field J in Georgian American Alloys (supra).23 It was also observed by counsel
for the petitioner at this point that whilst no criticism was made of TC there were three
persons who had accessed the file from which affidavits had not been obtained. This was
said to demonstrate the difficultly which would arise when ad hoc security arrangements
required to be justified. The ad hoc nature of an arrangement meant, as a matter of
probability, that no record of access would be kept and therefore attempts to identify
potential disclosure at a later stage would be correspondingly difficult.
[30] The third area of criticism was directed at the work done by TC in an attempt to
demonstrate that there had been no disclosure of confidential information. Mr Davie had
interrogated the “correspondence” area of TC’s electronic file for the petitioner. That
exercise had enabled Mr Davie to show who had accessed that part of the file and what
documents they had seen. He had not however sought to interrogate those parts of the
electronic file relating to “emails”, “finance” or “signed documents”. That failure
necessarily meant that who had accessed those parts of the file and what they may have
22 At page 239
23 At page 85
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21
accessed was unknown. In these circumstances it simply could not be said that there had
been no disclosure of confidential information. It was submitted that there were was “no
apparent reason why the respondent could not have provided the petitioner with the print
offs for the remainder of the documents” which would have at least enabled them to satisfy
themselves in relation to those parts of the file.
[31] Having regard to all the foregoing considerations the submission was that it was
impossible to know what the extent of the risk of disclosure in the past had been. Whilst it
was accepted that the file had been locked down since 21 September it was further
submitted that the risk of disclosure was not removed. The submission was developed by
stating that the petitioner could see no obvious reason why TC required to retain the
petitioner’s file within its electronic system at all. It was suggested that if TC had taken the
step of removing the information from its system and storing it off-site, a step which was
taken in relation to files in Bolkiah (supra) as a matter of example, that could have gone
further towards removing risk of future disclosure. In these circumstances it was submitted
that TC had not demonstrated to the extent necessary that the level of risk existing was
acceptable. The submission was further renewed that the appearance of justice and the
broader ground of the need to preserve the administration of justice justified the granting of
interdict as craved.
Respondent’s submissions at continued hearing
[32] TC’s submissions were that all necessary steps had now been taken to demonstrate
that the level of risk of leakage of confidential information was sufficiently low to enable the
court to be satisfied that TC could continue to act for the petitioners without there being a
risk of disclosure of information confidential to the petitioners or, further, in any respect
Page 22 ⇓
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threatening the integrity of the administration of justice. The respondents had taken the
opportunity afforded to them by the court to provide information such as would enable the
court to form the view that there was no significant level of risk of disclosure of information
which was the property of the petitioner.
[33] In relation to the specific criticisms advanced by senior counsel for the petitioner in
relation to the actings of Mrs Littlefield senior counsel for TC suggested that the actions of
Mrs Littlefield were not malign. Whilst he appeared to accept that no obvious reason
existed for Mrs Littlefield accessing the file on the occasions she did he did point out that the
petitioner had parted company with TC on good terms and had expressed to Mr Littlefield
the hope that she could have a professional client solicitor relationship with them again in
the future.24
[34] In relation to the three members, or former members of staff from whom affidavits
have not been obtained senior counsel’s submission was simply that having regard to the
circumstances and the likely level of knowledge on the part of the individuals concerned the
effort to obtain the information was not justified.
[35] Dealing with the affidavit of Mr Davie and its implications senior counsel for TC
submitted that these investigations demonstrated that analysis of who had accessed the
correspondence section of the electronic file disclosed no grounds for concern of leakage of
confidential information. He accepted that other parts of the petitioner’s electronic file held
by TC had not been investigated by Mr Davie. I was informed that senior counsel had
discussed this with Mr Davie in consultation and been advised that the correspondence
folder within the file was the most “significant folder” for the issues with which this petition
is concerned that being because “that is where the file notes and correspondence is, and
24 Affidavit of Peter Littlefield number 13 of process
Page 23 ⇓
23
where someone would be expected to go if they wished to learn about the important
information on the file”. It was also apparently the view of Mr Davie that interrogation of
the remaining elements of the file “would take many hours”. Notwithstanding these
considerations senior counsel caused or required Mr Davie to conduct further investigations.
I was advised that the “emails” section of the file contained 156 items. The “documents”
section of the file contained 28 items. The “finance” section contained 7 items and the part
of the file relating to “signed documents” contained 4 items. Senior counsel instructed
Mr Davie to consider 5 items in the email folder and a number of other items. It was
maintained that this further investigation provided nothing which would cause concern. A
document disclosing the files in these sections was produced by TC, albeit only on the
morning of the hearing, that is 30 November 2018.
[36] On the basis of all the foregoing the submission for TC was that the index of risk was
at such a low level that there was no impediment to TC continuing to act for SDM.
Conclusions
[37] The law relevant to the determination of this petition was generally agreed is as
outlined in paragraphs [7] and [8] hereof and does not appear to me to be in serious doubt.
[38] There are two distinct strands. First, on the authority of Ecclesiastical Insurance Office
Plc (supra), a decision of an Extra Division of the Inner House which is binding upon me, the
court has an inherent power to regulate the conduct of officers of court, such as solicitors.
That inherent power can be exercised where a fair minded person would conclude that an
officer of court should be prevented from acting in order to protect the integrity of the
judicial process and the due administration of justice which includes the appearance of
justice.
Page 24 ⇓
24
[39] Second, beyond the general exercise of an inherent power the court requires to
intervene when it is established that a real risk that relevant confidential information might
come into the hands of a person with an interest adverse to that of the applicant, in this case
the petitioner. Authority for that proposition is founded upon the dictum of Lord Millet in
Bolkiah (supra) in the passage quoted in paragraph [8] of this opinion. I should also note that
lest there be any doubt as to the applicability of Lord Millet’s dictum uttered in an English
case it was expressly approved by the Inner House in Ecclesiastical Insurance Office
Plc (supra). The test established by Lord Millet was twofold, first to determine that the
solicitor is in possession of information which is confidential to the client and to which
disclosure has not been consented and, second, that the information may be relevant to the
matter in which the interest of the other person is or may be adverse to the applicants. As
Lord Millet expressly said although the burden of proof is on the applicant that burden is
not a heavy one. In that regard it might also be noted that the test for relevancy enunciated
by Lord Millet is only that the information “may be” relevant to the subject in issue.
[40] Implicit in Lord Millet’s dictum is the issue of confidentiality. In the course of
submissions counsel referred to a number of text books where the concept of confidential
information had been discussed. I did not, with respect, find these references of particular
assistance. As a matter of plain English “confidential” means that which is intended to be
kept secret, and “confidentiality” is the state of keeping something secret or private. I
would, further, observe that a solicitor is in my view bound by a duty of confidentiality in
relation to all information pertaining to a client which comes into his possession. Indeed the
very fact that a person is a client of a solicitor would itself, again in my view, constitute
confidential information. This duty can only be narrowed if the information imparted by a
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25
client to a solicitor is in the public domain or the client expressly waives confidentiality in
any matter.
[41] I consider it is against these considerations that the material in Mr Littlefield’s files
must be viewed. The starting point would therefore be that everything in the files would be
confidential unless it is plainly within the public domain or the right to confidentiality has
been waived by the petitioner. In the context of the present dispute there would of course
arise the further question about whether knowledge of the material in the file would be
prejudicial to the interests of the petitioner and advantageous to those of SDM.
[42] The characterisation by counsel for the petitioner of those parts of TC’s file
specifically drawn to my attention was to the effect that it showed or tended to show matters
pertaining to the petitioner’s finances. Having considered the file I consider that
characterisation to be justified and appropriate. I have already referred to the proposition I
made which counsel for the petitioner accepted to the effect that a reader of the file would
gain a reasonable understanding of the petitioner’s finances. Counsel for TC did not seek to
challenge that proposition in his submission. In my opinion a reasonable understanding of
the opponent’s financial circumstances would be of advantage to the other party in a divorce
action with financial conclusions. In forming that opinion I take account of the
consideration that in such a divorce action the court requires to establish the extent of
matrimonial property. That no doubt entails that information, some of which may well
encompass material of the type in Mr Littlefield’s files, will require to be disclosed. I do not
however consider that I am entitled to have regard to the exact nature of matrimonial
property at this stage. I agree with counsel for the petitioner that I should determine the
present application on the basis of the position as it is at the time of determination of the
present petition, that is of a divorce action with a proof set down for a date in February 2019.
Page 26 ⇓
26
In this context I also have regard to the issue of possible settlement negotiations. As was
submitted it is within judicial knowledge that the majority of divorce cases with financial
conclusions are ultimately settled. Beyond that, as already noted, the court has been
provided with knowledge which shows that there have already been some discussions anent
settlement in the divorce action between the petitioner and SDM. The exact nature of
settlement negotiations is, obviously, unknown to the court. The tactics and considerations
of parties in negotiations are equally unknown to the court. It does however appear to me
tolerably clear that knowledge of the information contained in Mr Littlefield’s file could be
useful to SDM in any settlement discussions in the present case.
[43] On the basis of the foregoing analysis I form the view that the information contained
in Mr Littlefield’s files constitutes information which is confidential to the petitioner
disclosure of which would be potentially adverse to her interests. On that basis the first part
of the test adumbrated in Bolkiah (supra) is satisfied.
[44] There remains the issue of the nature of safeguards instituted by TC and whether
they are sufficient to reduce the risks of disclosure of confidential information to an
acceptable level. In that regard I make clear that whilst I have considered the authorities put
before me I accept the proposition advanced by both parties that each case requires to be
determined on its facts. I acknowledge that the present case is one where a limited number
of persons are likely to have had access to any information confidential to the petitioner. I
equally accept that the scope, even if inadvertent, of disclosure of information is more
limited than would be the case where large numbers of persons had access to large
quantities of confidential information. It follows from that that I accept that the rigour of the
precautionary measures taken in, for example, Bolkiah (supra) and Georgian American
Alloys (supra) would not be required in the present case.
Page 27 ⇓
27
[45] I deal firstly with the issue of “retained information”, which, as presented in
submission, was confined solely to the knowledge of Mr Ferry. Mr Ferry has sworn on
affidavit containing an undertaking the effect of which is that he will disclose no
information he has retained in his memory to any person save as such disclosure is
mandated or is ordered by a court. I consider the terms of the undertaking to be both
satisfactory and sufficient to eliminate any risk of disclosure on the part of Mr Ferry. I
would only add that in reaching that view I have taken account of his special status as an
officer of court which in my view strengthens still further the force of the undertaking given.
[46] At the conclusion of the first hearing, my view, in relation to the confidential
information in Mr Littlefield’s files was different to that which I heard in relation to retained
information. I considered that the persons who had at that stage sworn affidavits and who
had given undertakings had taken steps which were sufficient to protect information
directly controlled by those persons. I have no reservations in stating that the undertakings
were given by officers of court in good faith acting professionally and responsibly. I did
however have serious reservations as to whether these undertakings of themselves were
sufficient to reduce the risk complained of to an extent that would satisfy the court that the
petitioner’s interests were not prejudiced. The criticisms of the extent of the protection
offered by counsel for the petitioner, were not, in my view, overstated. The affidavits sworn
contained examples of confidential information which had been disclosed. This was, I
accept, done inadvertently. I also accept that the material disclosed is immaterial to the
issues at stake in the divorce action. Notwithstanding those factors the fact that there was
disclosure of confidential information in my view illustrated the dangers presented by
inadvertent disclosure. The same observation applies to the fact that material from another
Page 28 ⇓
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file pertaining to another client was inadvertently placed in Mr Littlefield’s file for the
petitioner.
[47] My principle concern however was that I did not consider that TC had provided the
assurances necessary to satisfy the court that there was no risk of disclosure of information
prejudicial to the petitioner outwith the direct control of those who had thus far given
undertakings. The lacunae in information related primarily, but not exclusively, to TC’s IT
systems. I considered the complaints advanced by counsel for the petitioner to be well
justified. I would have expected to see an affidavit, or possibly report, from a senior person
in TC’s IT department explaining how their system operates, how lock down operates and
how it would apply in the context of security measures in the present divorce action.
Provision of such evidence in my opinion would not have been particularly difficult and
could have potentially alleviated the concerns I expressed. I also noted that aside from IT
there was little evidence from either non-partner qualified staff who had access to the files or
support staff who have had access or may have access in the future. In my view evidence
identifying such persons and, further, providing evidence from persons in those categories
would also be required before the court could be satisfied that an effective system sufficient
to reduce the level of risk to that which would be deemed satisfactory had been achieved.
[48] In the absence of evidence of the nature I have described I could not be satisfied that
the level of risk had been reduced to an acceptable level.
[49] On the basis of the conclusions I reached at the conclusion of the first hearing I
would have been entitled to pronounce decree of interdict as craved in this petition. That
was the submission made to me by counsel for the petitioner at the hearing on 2 November
2018. Notwithstanding that submission I formed the view that there were other legitimate
considerations to which I ought to have regard to before pronouncing decree. These were
Page 29 ⇓
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that petition procedure is inherently more flexible than the procedure stipulated in the rules
of court for the conduct of ordinary actions. Further, following the hearing on 2 November I
did not make avizandum, merely continued the cause to consider arguments raised on that
date. Yet further, and perhaps most importantly, I had regard to the fact that TC had made
serious efforts to address the issues of risk of disclosure of confidential information
advanced by the petitioner. My criticism was confined to what I regarded as failures, or
omissions, to address all legitimate concerns relative to risk of disclosure submitted by the
petitioner. I should say that I also had in mind the need to proceed expeditiously. As
already stated the substantive action between the petitioner and SDM is due for proof in
February 2019, a period of only four months in the future. In the event that interdict was
pronounced against TC SDM would require to brief and consult with new solicitors who
would require to familiarise themselves with the paperwork and thereafter prepare the case.
I considered there was a realistic risk that this process would take longer than the time
available and the result would be a discharge of a proof which I did not conceive as being in
the interests of either party. Considering the implications of the totality of these factors lead
me to conclude that it would be consonant with the interests of justice to afford TC a short
period of time to consider whether they were able and minded to address and seek to rectify
the lacunae in evidence I had identified. For that reason I continued the matter until a by
order hearing on 30 November 2018.
[50] Following the conclusion of the hearing on 30 November, and on the basis of all the
information available I consider that a number of conclusions can be drawn. First, that by
virtue of acting for the petitioner for a number of years in relation to her private affairs TC
retained at the date of the petitioner’s separation from SDM (22 March 2018) information
pertaining to her financial affairs. Second, that information was up until the time when TC
Page 30 ⇓
30
ceased to act for the petitioner in early June 2018 current and of a nature which would
enable a person reading the file relative to the petitioner to form a reasonably accurate view
of the petitioner’s financial position. Third, whilst the court does not and cannot have any
insight into the private considerations of any litigant in a contested litigation, in the context
of a divorce action with financial conclusions knowledge of an opponent’s up-to-date
financial circumstances are, on the balance of probabilities, likely to be advantageous in the
litigation. Fourth, that whilst on the evidence of Mr Davie TC operated an IT system which
had within it the facility to “lock down” a file, which meant that after lock down only
authorised persons could gain access to the file, that system only operated when a partner
instructed the IT department to put the system into operation. The system was therefore in
effect a security measure capable of restricting access to a file but one which for effectiveness
was dependent upon partner intervention. In my view that is in essence an ad hoc system
available when a partner deems it necessary to put it into operation. Fifth, in the present
case the lock down system was only implemented on the instruction of Mr Littlefield, some
three and a half months after he knew that TC no longer acted for the petitioner. Moreover
it was only operated three days after the present petition was served upon TC. I interject to
observe that senior counsel for TC informed me during the course of submissions that
Mr Littlefield now accepted, “with the benefit of hindsight” that lock down should have
taken place at an earlier stage. In relation to that point, whilst I do not suggest Mr Littlefield
was acting in other than good faith, I note that SKO, who had accepted instructions to act for
the petitioner following TC’s withdrawal from acting, drew to Mr Littlefield’s attention the
requirement for security precautions to be implemented in respect of the petitioner’s
electronic file in an email dated 18 June 2018. I was provided with no explanation as to why
lock down took so long to implement and, further, no explanation why the request in SKO’s
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31
decision of 18 June was not heeded. Sixth, 18 persons within TC accessed the
correspondence section of the petitioner’s electronic file. Whilst that number is contained,
and all these deponents speak to a culture of client confidentiality within TC and to their
awareness of a need to respect the confidentiality of clients, it is in my view clear that this
number of persons accessing a file carries with it a risk of inadvertent disclosure of
confidential information. Seventh, one person, Mrs Littlefield, accessed the file without
apparently having authority to do so. Mrs Littlefield had never acted for the petitioner. She
was an associate and on the evidence had not been instructed by a partner who was acting
for the petitioner to access the file. Her reason stated for accessing the file, for the “purpose
for being up-to-date” so far as a client was concerned was, in my view, unsatisfactory.
Whilst the file pertained to a person who was a client of TC, the firm who employed
Mrs Littlefield, she herself had no client contact with that person. Moreover her statement
that “obviously all matters relating to clients are confidential but clients do appreciate it
when they get a sense that they are genuinely appreciated” appears to me to improperly
comprehend the nature of the confidentiality of client information. In the context of the
affidavit in which that statement was made it seems to carry the suggestion that confidential
information may be accessed if there is some consideration pertaining to the general state of
knowledge about the client which overrides that person’s right to confidentiality. I do not
consider that as a matter of law such a view would be justified. In the context of the present
petition Mrs Littlefield’s access to the file demonstrates that, albeit prior to lock down taking
effect, there was scope for someone with no professional reason for accessing the petitioner’s
file doing so. Given that the second date on which Mrs Littlefield accessed the file (17 July
2018) was after the date when SKO had alerted TC to the need for security in relation to the
petitioner’s electronic file, then accessing of the file also appears to highlight the risks and
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inadequacies associated with ad hoc information barriers. Further, inadequacy of the reason
given for accessing the file is, again in my view, at variance with the many statements made
on behalf of TC about the culture of confidentiality said to exist within the firm. Eighth, the
interrogation of the petitioner’s electronic file conducted by Mr Davie is, on his own
admission, incomplete. It was only comprehensive in relation to the “correspondence”
section of the file. Four other areas of the file were not interrogated at the date Mr Davie
swore his affidavit on 23 November 2018. After that, and apparently only following
consultation with and on instruction of senior counsel, limited areas of two further parts of
the petitioner’s electronic file were interrogated. The information contained therein was
only made available to the petitioner’s solicitors on the morning of the hearing of
30 November at a time when it would seem that in a practical sense no proper consideration
or analysis of it could be made. In relation to the correspondence file which was
interrogated it was submitted by senior counsel for TC that this represented the most
important part of the file and was where confidential information would be most likely to be
found. I cannot comment on this assertion in the absence of direct information. I would
however simply observe that having regard to the prominence of email communications in
modern commerce I would have thought that that part of the file could also have been
considered as both a potential source of information and therefore one which might have
merited full examination. The explanation proffered by Mr Davie to senior counsel that “it
would take many hours” to investigate those areas which were not interrogated is, in my
view, of no consequence and indeed having regard to the importance of protecting client
confidentiality perhaps a little surprising and concerning. Consideration of the line of
authority I have been directed to demonstrates that the importance of protecting a client’s
confidential information is such that professional advisors, in circumstances where they
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33
subsequently wish to act for someone with an interest adverse or potentially adverse to the
former client, have an onerous burden placed upon them. A consideration of the amount of
time that such files might take to investigate is in my view an inadequate reason for failure
to consider all material held which might contain information confidential to the former
client. I would add that in addition to these eight conclusions on the basis of the
information before me, the concerns I expressed at the conclusion of the first hearing appear
in large part, to continue to exist.
[51] In my opinion where a firm of solicitors wishes to act in a matter for a party with an
interest adverse to that of a former client, and where they hold information confidential to
the former client, an adequate and effective information barrier must exist to protect the
position of the former client. I respectfully agree with the observations of Lord Millet in
Bolkiah (supra) that ad hoc arrangements made retrospectively, that is after a potential
conflict between existing client and past client have emerged, are unlikely to be as robust as
permanent arrangements which operate automatically and are already in place and
operative when a conflict emerges. The reason for this is plain, ad hoc arrangements can
take time to put into place. During any period before an ad hoc security arrangement or
information barrier is erected and is operative there is the potential, by means of either
deliberate or inadvertent action for confidential information to leak. In the present case the
most important information barrier was the “lock down” system of electronic files. For
reasons which, as I have already said, no explanation was forthcoming, lock down did not
operate for a period of something in the order of three and a half months after there was an
obvious risk created by the petitioner ceasing to instruct TC and that firm correspondingly
informing her that they could not act on her behalf in divorce proceedings against her
husband. I am bound to state that my view is that a conflict, or at least potential conflict,
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and therefor the need to have an effective information barrier, should have been obvious to
TC from the date of the service of the summons in the action of divorce by the petitioner
against her husband, a continuing client of the firm, on 22 May 2018. That said, the
relatively short lapse in time between that date and early June is probably of no particular
materiality in the context of the present petition. The significant gap in time between the
emergence of a conflict and the operation of lock down would of itself cause me significant
concerns. I do however take into account the fact that after the respondents ceased to act for
the petitioner Mrs Littlefield accessed the relevant file on one further occasion. As I have
already observed the lack of adequate explanation for that intervention causes me concern. I
consider that that fact increases the risk of disclosure of confidential information which is
the petitioners concern in this petition. I am also concerned that there has been incomplete
examination of all sections of the petitioner’s electronic file. This fact leads me to the
conclusion that the court is still, notwithstanding that the respondents were given additional
time to provide further information, in a position where it cannot be satisfied as to the
precise level of any disclosure of confidential information which has occurred.
[52] Having regard to my conclusions in relation to the precautionary steps that have
been taken by TC to obviate the risk of disclosure of information it is not strictly necessary
for me to form any concluded views on the petitioner’s arguments in relation to the inherent
jurisdiction of this court to protect the integrity of the judicial process in circumstances
where there is an apprehension of disclosing of confidential information. For completeness
it may however be of assistance if I make some observations in relation to this issue. In the
present case TC acted for both the petitioner, albeit on a limited and ad hoc basis, and SDM
throughout, broadly, the tenure of their marriage. I have found that in the course of acting
for the petitioner TC acquired information confidential to her knowledge of which, if
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acquired by SDM, could be advantageous to that person and prejudicial to the petitioner’s
interests in the conduct of the divorce litigation. In my opinion, the court, and for that
matter the solicitors’ profession, is rightly concerned to ensure that solicitors do not, in
circumstances such as these disclose, whether by inadvertence or otherwise, information
confidential to a client or former client which might result in prejudice to that client. Whilst
no information was placed before me I am aware, as a matter of judicial knowledge, that the
Law Society of Scotland have guidelines or rules regulating solicitors’ conduct in situations
where conflict may arise. It is therefore, in my view, a relatively easy step to conclude that
in order to ensure that the “appearance of justice”, as it was characterised by Lord Bracadale
in Ecclesiastical Insurance Office Plc (supra), is preserved the court will take a rigorous or strict
approach to the operation of its inherent power in circumstances such as have arisen in the
present case. On the basis of that consideration I conclude that, as is the case here, where the
court is not satisfied that sufficient precautionary measures have been taken by solicitors to
protect the interests of clients or former clients the inherent jurisdiction described in
Ecclesiastical Insurance Office Plc (supra) would be an appropriate vehicle for providing
protection to the client or former client facing potential prejudice.
[53] When I have regard to all the foregoing considerations I am not satisfied that the
respondents have satisfied the onerous test imposed upon them. I consider that the
petitioner is in those circumstances justified to the grant of interdict as craved.