A wife has obtained interdict against her former solicitors from continuing to act for her husband in divorce proceedings between the couple, where the court was not satisfied that sufficient precautionary measures had been taken to protect her interests, in this case through the inadvertent disclosure of material confidential to her.
Lord Brailsford in the Court of Session granted the order to Kae Murray to prevent Turcan Connell from acting further for her husband Sir David Murray, in proceedings she had raised for divorce, with capital and alimentary financial claims, and for the setting aside of a pre-nuptial agreement regulating their financial affairs in the event of divorce.
The couple were married in 2011. At the time of the agreement Ms Murray was represented by a solicitor, Mr Ferry. In 2013 he moved to Turcan Connell, since when he had not acted for Ms Murray. That firm had acted over the years for her husband, including in the pre-nuptial agreement; since the marriage Ms Murray had however been advised on tax and trust matters by the firm's Mr Littlefield. The couple separated in March 2018 and divorce proceedings were raised that May. In September Ms Murray raised the contention that it was inappropriate for the firm to continue to act for her husband.
The information claimed to be confidential comprised the “retained knowledge” of Mr Ferry (his recollection of having acted for Ms Murray), and information in two files compiled by Mr Littlefield, electronic copies of which continued to be held by the firm.
Having inspected the files with parties' agreement, Lord Brailsford acepted Ms Murray's contentions that the files showed or tended to show matters pertaining to her finances, information that would be of advantage to the other party in a divorce action with financial conclusions; it was confidential to the petitioner and disclosure would be potentially adverse to her interests. This satisfied the first part of the test in Prince Jefri Bolkiah v KPMG (1999).
Considering whether Turcan Connell had instituted safeguards sufficient to reduce the risk of disclosure to an acceptable level, a sworn undertaking by Mr Ferry not to disclose anything within his recollection except as mandated by a court was satisfactory as respects his retained knowledge. After an initial hearing the court was also satisfied that other individuals within the firm who had had access to the files had taken steps sufficient to protect information they directly controlled; but had "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, as the affidavits themselves, albeit inadvertently, contained examples of confidential information that had been disclosed". More importantly, the firm had not "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", particularly in relation to its IT systems and the lockdown procedure which was intended to restrict access to particular files.
However, having regard to efforts made by the firm to address the issues of risk of disclosure, and having regard to the need to proceed expeditiously when a proof had been set in the divorce action, Lord Brailsford allowed the firm to consider whether it was able and minded to address the deficiencies in the evidence. Following a further hearing he concluded that a number of concerns remained, including that the lockdown system was dependent on partner intervention to be put into action; that this had only happened after service of the present petition, and the firm now accepted it should have been done sooner; and that in addition to the risk of inadvertent disclosure mentioned, one person had accessed the file without apparently having authority to do so, which highlighted the risk.
The judge concluded: "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 advisers, in circumstances where they subsequently wish to act for someone with an interest adverse or potentially adverse to the former client, have an onerous burden placed upon them... ad hoc arrangements made retrospectively, that is after a potential conflict between existing client and past client are unlikely to be as robust as permanent arrangements which operate automatically and are already in place and operative when a conflict emerges...
"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."
This was also a case where it was appropriate to exercise the inherent jurisdiction of the court to provide protection to the client or former client facing potential prejudice.
"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."