M (M) v M (GI)
| Jurisdiction | Ireland |
| Judge | Mr. Justice Michael White |
| Judgment Date | 18 December 2014 |
| Neutral Citation | [2014] IEHC 687 |
| Docket Number | [2010 No. 11 M] |
| Court | High Court |
| Date | 18 December 2014 |
[2014] IEHC 687
THE HIGH COURT
BETWEEN
AND
FAMILY LAW ACT 1995 S35
BOLKIAH v KPMG (A FIRM) 1999 2 AC 222 1999 2 WLR 215 1999 1 AER 517 1999 1 BCLC 1 1999 CLC 175 1999 PNLR 220
Z, IN RE 2010 2 FLR 132 2010 FAM LAW 458 2009 EWHC 3621 (FAM)
Family Law – Practice & Procedures – Retention of former solicitor by other party – Duty of confidentiality – Prejudice
Facts: The respondent sought an injunction for restraining the solicitor of the applicant from pursuing the appeal from an order of the Court to the Supreme Court or the Court of Appeal. The respondent alleged that the solicitor of the applicant had previously given certain advice to the respondent pertaining to some issues between the applicant and the respondent.
Mr. Justice Michael White refused to grant an injunction to the respondent. The Court, however, held that the respondent would not be precluded from brining the aforesaid objection before the Supreme Court or Court of Appeal. The Court held that a party who sought to restrain his former solicitor must establish that the solicitor was in possession of the confidential information whose disclosure was made without consent and that the information might be of relevance, in which the interest of the other client was adverse to him. The Court held that the respondent would not be prejudiced by the presence of his former solicitor given the fact that the advice in relation to which restraint was sought was given 12 years before and neither the respondent nor the solicitor remembered anything from those interactions. The Court observed that the issues in relation to which the respondent sought the advice from the former solicitor had been determined by the Court.
1. The respondent issued a motion on 30 th September, 2014, seeking an injunction restraining M.W., solicitor of W. & T., Solicitors on record for the applicant in the proceedings from continuing to represent the applicant in the proceedings including the appeal of the Order of the High Court to the Supreme Court or the Court of Appeal.
2. The motion was grounded on the affidavit of the respondent sworn on 26 th September, 2014.
3. The respondent received substantial documentation from solicitors who had previously acted for him on 30 th May, 2014. On checking the contents of the boxes of documents it was discovered on 13 th June, 2014, that M.W.,, the applicant's solicitor, when she was a partner in the firm of M.F. Solicitors gave the respondent certain advice in respect of matters arising between him and the applicant.
4. The respondent engaged her services to provide him with legal advice in relation to matters arising from his relationship with M.M., the termination of their engagement and matters consequent thereto. M.W. provided a memorandum on the law relating to non-marital couples and partners which was received by the respondent's English solicitors in October 1997. The respondent had two meetings with M.W. in October 1997 and June 1998 during which specific advices were given to the respondent. Letters of advice were provided by M.W. on 24 th November, 1997, and 19 th June, 1998.
5. The subject matter of the advices sought and obtained from M.W. by the respondent related to his relationship with the applicant, loans of money given by him to her in connection with a property, a Loan Agreement and a Consultancy Agreement between the respondent's company and M.M. and the termination of their engagement.
6. The respondent did not recollect having engaged MW. nor having met her until the papers were brought to his attention in June 2014.
7. The solicitor for the applicant, M.W., in her affidavit sworn on 14 th October, 2014, stated that she had no recollection whatsoever that she had ever provided any advices to the respondent nor had ever acted for him as a client, and the first time that it came to her attention was when she received a letter from the respondent's current solicitors in a letter dated 12 th August, 2014.
8. The substantive proceedings before this Court in which M.W. acted as the applicant's solicitor was an application for Judicial Separation and ancillary relief.
9. The respondent had initially issued Nullity proceedings or in the alternative Judicial Separation proceedings on the 28 th January, 2010, which were served on the applicant on 23 rd February, 2010.
10. The applicant then issued proceedings on 10 th March, 2010, by way of Special Summons which were served on the respondent on 18 th March, 2010. Ultimately, the respondent did not proceed with the Nullity application and the Court heard the matter on the proceedings issued by the applicant.
11. The proceedings were lengthy. A separate issue pursuant to s. 35 of the Family Law Act 1995 ("the 1995 Act") was heard in respect of a transfer of assets by the respondent to a Trust and another individual. That matter was heard on 14 th, 15 th and 16 th May, 2012 and judgment was delivered on 7 th June, 2012.
12. The substantive proceedings were heard on 12 th June, 24 th, 25 th, 26 th, 30 th and 31 st July, 1 st, 2 nd and 3 rd August, 10 th, 11 th, 12 th, 13 th, 17 th and 18 th December all in 2012 and 7 th, 13 th and 19 th February, 2013. Judgment was delivered by way of a written judgment on 25 th April, 2013. The Order was perfected on 14 th October, 2013.
13. The respondent appealed the Order to the Supreme Court on 1 st November, 2013, and that appeal is presently pending either before the Supreme Court or the Court of Appeal.
14. The Court permitted M.W. to have legal representation, and to have submissions made to the Court on her behalf and the Court also had the benefit of the legal submissions of the respondent and the applicant.
15. There is no dispute that the appropriate test to be applied by the Court is that set out in the United Kingdom House of Lords decision Prince Jefri Bolkiah v. KPMG (A Firm) [1999] 2 A.C. 222, [1999] 1 All E.R. 517, [1999] 2 W.L.R. 215.
16. Lord Millett stated:-
"Where the court's intervention is sought by a former client,...
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