A v B [2020] EWHC 809 (TCC) was a commercial dispute arising from two ongoing arbitrations. It was held that an expert witness owes a fiduciary obligation of loyalty which is not satisfied simply by putting in place information barriers to preserve confidentiality and privilege. Such a fiduciary must not place himself in a position where his duty and his interest may conflict.
There are few decisions of the courts in England and Wales on what constitute ‘related matters’ for conflicts purposes, particularly whether general knowledge of a client’s strategy, policies and procedures, which American lawyers refer to as ‘playbook conflicts’, can be sufficient to prevent a firm from acting on the basis that they have confidential information.
An American case, Persichette v. Owners Ins. Co., No. 19SA188 (Col. May 4, 2020), may be of particular interest to those involved in insurance defence work. This was a successful appeal against a District Court’s refusal to disqualify lawyers from acting against their former insurance clients on the basis that they possessed confidential information in ‘substantially related’ matters.
The Court of Appeal dismissed an appeal in Glencairn IP Holdings Ltd v Product Specialities Inc (t/a Final Touch) [2020] EWCA Civ 609; we mentioned the first instance decision in our September 2019 issue. The Court refused to restrain solicitors from acting for a defendant where, in earlier similar litigation, the same firm had acted for another defendant against the same claimant in
litigation which had been settled through a mediation and confidential settlement.
It held that the critical question was whether the information barrier put in place worked, which is a question of fact, in relation to which the burden of proof to show that it did not work was on the applicant. The proposition of law identified in Bolkiah, that an information barrier has to be part of the structure of the firm, did not apply as the solicitors were not in a fiduciary relationship with the applicant. Interestingly, in an era where there are ever more niche law firms such as our own, even though the case involved a small firm of solicitors, the information barrier was considered to be effective.
Links to these and other AML news items are on www.legalrisk.co.uk/news and there is an extensive collection of resources on www.legalrisk.co.uk/Conflicts.
Frank Maher will be speaking on When things go wrong, addressing the issues raised by the SRA v Howell Jones LLP decision in Case No. 11846-2018, at an online conference on 3 June 2020. See www.legalrisk.co.uk/Events.
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