Practice and Procedure

BODLE v COUTTS & CO (2003)

PUBLISHED July 17, 2003

Where solicitors, who had previously been instructed by one party to proceedings, such instructions being terminated at the client's request, were subsequently retained by the other side, there was no risk of disclosure of confidential information to the latter clients as there was no material in the files that was germane to the issues between the parties.Application by Bodle ('B') for an order that Coutts & Co's ('the bank') solicitors, Farrer & Co ('the solicitors'), be restrained from acting for the bank in proceedings brought by B. B had applied to set aside a statutory demand served by the bank that was based on a judgment debt in respect of monies due from B as a result of funds advanced by the bank to B. B's application to set aside was dismissed and the subsequent appeal was dismissed by consent in October 1994. The solicitors represented B between 1990-1995 in matrimonial proceedings and during the early stages of her negotiations with the bank. The solicitors released their files to other solicitors for a short period following which they were returned to them. The solicitors refused to release the files to B's new solicitors as B had failed to pay their legal fees for which they had obtained a judgment against her, that remained entirely unsatisfied. On 24 June 2003, the court directed that the files be produced to the present judge to ascertain whether or not they contained confidential information that was germane to the unresolved issues. The judge decided there was no such material in the files that would assist B. B objected to the solicitors' files being inspected by the judge without B's solicitors having access to the same files on the basis that it would be procedurally unfair to B and would be a breach of Art.6 of the European Convention on Human. The solicitors accepted they had confidential information that belonged to B, but argued that none of that information was relevant to the dispute for which they had been retained by the bank.HELD: (1) It would have been procedurally unfair for the court to have had regard to documents deployed by one side without the other side having access to them, and such would have been an arguable breach of Art.6. John Dickinson v Duncan Rushmer (2002) LTL 14/1/2002 considered. However, that was not an absolute rule. In this case there was no question of the solicitors deploying material in support of the application, indeed they had only disclosed the files to the court following a court order. This application was not an application for disclosure and delivery up of documents, which a party could resist if it asserted a lien. The courts could not infringe the solicitors' property rights by requiring them to hand over documents to which they had a legitimate lien. To do so, would entirely circumvent the lien. There was no Art.6 infringement of B's rights as the court had to balance her rights against those of the solicitors. (2) The solicitors did not have any relevant confidential information concerning the issues between B and the bank. All the principals within the solicitors who had acted for B had since left the firm. Those who presently had the conduct of the matter on behalf of the bank had not had access to any of B's files nor had they been involved in any of the matters for which B retained the solicitors. The solicitors stated that the files had been in storage since February 2003 after which they had been in a locked cupboard. A senior partner at the solicitors gave certain undertakings as to access to the files and discussion of the contents therein. There was no risk of disclosure of any confidential information to the bank. Bolkiah v KMPG (1999) 2 AC 222 and Koch v Richards Butler (2002) EWCA Civ 1280 considered.Application dismissed.