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The Tooth, the whole Tooth and nothing but the Tooth

In which the father from the forty tons of Toblerone case https://suesspiciousminds.com/2017/10/21/forty-tons-of-toblerone/ (remember, he ‘discreetly’ arranged for his children to see a solicitor in a relocation dispute and paid the solicitors fees of £174,000) made an application for mother’s divorce solicitor to be barred from acting for her.

I don’t usually do divorce blogs, but this is curious.

S v S (Application to stop Solicitor Acting) 2017
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2660.html

The deal apparently is that whilst father was deciding which solicitor to instruct himself, he sent round his representative OE to in effect interview some top-drawer matrimonial hot-shot firms (what is known in the trade as a ‘beauty parade’) to see who he wanted to go with.

OE says that on 30th November 2015, he went to see Mishcon de Reya, Stewarts Law and then our lead player, Mr Raymond Tooth of Sears Tooth.
The father/husband decided to go elsewhere, but objected when mother subsequently instructed Mr Tooth.

Mr Justice Williams was appropriately sniffy about the failure, even in such a big money case with uber-silks, to provide the practice direction documents.

12. I have read the trial bundle. I note in passing that none of the usual practice direction documents, such as an agreed chronology, case summary, reading list, or list of issues was included as required by PD27A. I very much hope I shan’t have to make this observation again to those involved in this case.

The chronology, when it finally emerged, threw up something interesting. Father/husband had signed a letter of retainer with HFC solicitors on 23rd November 2015 – a week before he saw at least two other solicitors and possibly the third, Mr Tooth.

It was the subject of debate whether this was understood practice in big money divorce cases that even after signing on with one lawyer, a client might continue the beauty parade to see if anyone else caught his eye, or whether this actually was a way of conflict blocking any other hot-shot firms to prevent them acting against husband/father.

Williams J sets out the law

8. Supplementing the submissions on the law that I have received, both orally and in writing, I have been referred to the following texts and cases: (a) Passmore on Privilege (3rd ed); (b), Minter v Priest [1929] 1 KB 655, (c) Minter v Priest : [1930] AC 558, (d) In a Little Spanish Town (Francis Day & Hunter v Bron) [1963] Ch 587; (e) Great Atlantic v Home Insurance [1981] 1 WLR 529; (f) HRH Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52.; (g) Davies v Davies [2000] 1 FLR 39; (h) Re T v A, (children, risk of disclosure) ) [2000] 1 FLR 859; (i) B & Others v Auckland District Law Society [2003] UKPC 38; (j) Fulham Leisure v Nicholson, Graham & Jones [2006] EWHC 158; (k) the West London Pipeline case [2008] EWHC 1729; (l) Re Z (restraining solicitors from acting) [2009] EWHC 3621; and (m) G v G (financial remedies, privilege, confidentiality) [2015] EWHC 1512.

9. The law ultimately was largely agreed, although there was a difference between the parties on three issues: firstly, whether the risk of disclosure of confidential or privileged information can come from subconscious or unconscious influence; secondly, whether there can be a partial waiver of privilege and how that might be dealt with; and thirdly, whether making an injunction is mandatory if the grounds are established, or whether the Court still retains a discretion whether to grant the order or not.

10. In summary, the principles I derive from all of those cases and which I apply are as follows.

(a) the duties arising in confidentiality and legal professional privilege arise whether the information is imparted to a solicitor directly by a principal, or by an agent on behalf of his principal. It would therefore apply to any confidential information or legally privileged material which arose between Raymond Tooth and OE.

(b) the duty arises whether the parties formally entered into a legal relationship or not. The imparting of information in contemplation of such a relationship would suffice. Thus a preliminary meeting between solicitor and client in the course of a beauty parade could suffice, probably even if pro bono or not charged for.

(c) the rules apply in family cases just as much as in civil actions. There is no absolute rule though that a solicitor cannot act in litigation against a former client.

(d) in the first instance it is a matter for the solicitor involved to consider whether, consistent with his professional conduct rules and the proper administration of justice, he can continue to act. If he concludes he cannot, that will usually be the end of the matter. If he concludes he can continue to act then the Court retains the power to grant an injunction to prevent him from acting.

(e) where a former client has imparted information in confidence in the course of a fiduciary relationship, and /or where that information is privileged, there are strong public policy reasons rooted in the proper administration of justice which support the approach that a solicitor in possession of such information should not act in a way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.

(f) it must be established that the confidential or privileged information is relevant or may be relevant to the matter on which the solicitor is now instructed by the person with an adverse interest to that of the former client.

(g) where it is established that a solicitor is in possession of such confidential and/or privileged information, the Court should intervene to prevent the information coming into the hands of anyone with an adverse interest, unless there is no real risk of disclosure. Once it is established that a person is in possession of such information the burden is on them to show that there is no such real risk. In this context “real” means it is not merely fanciful or theoretical, but it does not need to be substantial.

(h) the risk of disclosure may arise from deliberate act, inadvertent disclosure or unconscious influence or subconscious influence. In the latter case in particular it might be quite fact specific whether that risk arises or not.

(i) in the context of family litigation it is hard to conceive of a situation where the risk of disclosure would not satisfy that test where the Court had concluded that detailed, confidential financial information and/or privileged information had been disclosed to a solicitor by one party to a marriage which was, or might be relevant to a potential dispute between them. In most cases that would create a real risk where that solicitor was subsequently instructed by the other party.

(j) a party advancing such an application may decline to waive privilege or confidentiality, or may elect to partially waive privilege. If he partially waives privilege the Court may order full disclosure in relation to that transaction in order to determine an issue such as an application for an injunction like this, and the Court may take steps to ensure that the privilege is not waived for all purposes, but to ensure that the cat can be put back into the bag. In cases such as this the question should be considered at the directions stage, in particular where, as here, partial disclosure in the form of the attendance note has been made.

(k) if the principles on which an order can be made are established an order should usually be made, unless it is established that there are other more significant public policy reasons for not granting it, including that the Court concludes that the injustice to the respondent in granting the order outweighs the injustice to the applicant in not granting it. Relevant considerations might include, firstly, whether the information had been imparted during an exercise designed either wholly or in part to conflict out other solicitors who the respondent might seek to instruct; whether there are other firms who might now be able to act for the respondent; whether the application was made promptly; the additional expense and delay that might be occasioned to the respondent if they were obliged to instruct new solicitors; whether any such expense could appropriately be off-set by the applicant.

 

The issues in the case were, however, mainly factual, rather than legal. Had husband’s representative OE actually met with Mr Tooth at all, and had confidential information been exchanged. This sounds like a peculiar thing to have a factual debate about. But OE said that he had met with Mr Tooth, Mr Tooth disagreed. Both had to give oral evidence.

OE said that another lawyer was present, that Mr Tooth had said that his charging rate was £700 per hour and that Mr Tooth had produced detailed notes and a structured analysis.

However, witnesses from Sears Tooth said this

Laura Broomhall and Kelly Edwards say the following, which is of some relevance. They were the only two solicitors working for Mr Tooth on 30 November. They have no recollection of any meeting. Laura Broomhall has no recall of OE’S face. Ms Broomhall undertook a conflict search and consulted her attendance notes and diary for 30 November and found no records. Kelly Edwards has no notes or record in her diary, or attendances for 30 November. Ms Edwards met the mother in March 2016 and was not prompted to recall the case by that meeting.

39. Both Ms Broomhall and Ms Edwards say Mr Tooth has never charged £700 an hour. Ms Broomhall says she has no Eastern European connection, Kelly Edwards likewise. Laura Broomhall says that she would take a full note and Raymond Tooth a short note. Kelly Edwards says Raymond Tooth’s notes were far from structured; the assistant would take a detailed note, Raymond Tooth would write a few keywords no one could read. Ms Broomhall says Raymond Tooth has never behaved in the way OE suggests. Kelly Edwards agrees that he does not behave in that way.

Hmmmm.

Judicial findings
Analysis and Conclusions.
40. Issue 1: can the husband prove a meeting took place between Raymond Tooth and OE on 30 November? On balance, yes, I believe there was a meeting of sorts between Raymond Tooth and another member of his staff and OE on that day. The following matters demonstrate this: the appointment in Raymond Tooth’s diary that was put there by him following some contact by OE and not crossed out, a telephone message from some point in the afternoon by OE in which he gave his number, the Google search for the premises of Sears Tooth — I do not consider the time differences to be of any particular significance to OE’S credibility, they may arise from the use of different time zones on his devices — OE’S recollection of the interior of the premises (the piece of artwork, the obtaining of a card and the layout of the conference room) and the combination of OE’S own evidence and Mr Tooth’s evidence persuade me that an appointment was booked and that OE attended for it and some form of meeting took place.

41. The second and third issues: if a meeting did take place, can the husband prove any confidential or privileged material was communicated to Raymond Tooth and his assistant and can the husband prove that such material is or may be relevant to the current dispute or contemplated dispute.

42. Although Mr Marshall QC is right to say that the burden is not a heavy one, it must of course be context specific and be viewed in the light of all the evidence and all the circumstances. I consider the following factors to be significant in determining what is more likely to have occurred at this meeting. Inevitably I cannot refer to every matter that I have considered.

43. In order really to determine these issues as the husband seeks, I must be able to rely on OE’S evidence, together with any independent corroboration. Unfortunately overall I conclude that OE’S evidence is in many ways unreliable.

44. He produced no briefing note setting out the main facts or the principal issues he wanted to deal with, which is a little surprising and suggests someone not very committed to record-keeping or someone not placing much importance on the meeting.

45. He said the meetings were arranged to see a lawyer who would be a good fit for the husband, although he was not sure that he had any exposure to litigation at that time. It seems from the chronology that the overall picture that emerges is this was all part of long-term planning by the husband for possible future litigation in England. If there was something on the horizon though, at the particular time it seems to have been more related to the situation of the children than the divorce, which from the husband’s point of view was done and dusted nine years before. Those circumstances do not suggest that in initial meetings there would be detailed disclosure of confidential information as opposed to some general discussions about the approach of the lawyer and general discussions of jurisdiction.

46. OE did not disclose, in either his statement or in his oral evidence, that in fact he or the husband had seen HFC on 21 October and, more importantly, that the husband had signed a retainer letter with HFC on 23 November, a week before the meetings. As the husband’s representative for these purposes in London, it is inconceivable that OE was not aware of this and indeed more likely than not that he had made the recommendation to the husband to instruct HFC following the meeting they had had on 17 November. Although Mr Marshall QC says that OE could still have been looking for a better fitting lawyer than HFC, I have to say I consider that improbable. If he was, why not say so in his statement, that he retained them for the interim whilst he continued the search? Given it is now known that there were two meetings with HFC, including a second one with the husband’s Russian lawyer, I am not prepared to accept this explanation. I am satisfied that the husband selected HFC because he thought they were the best fit. Indeed he remains with them now, over two years after his initial meeting.

47. That fact inevitably affects the analysis of the later meetings. Perhaps they were arranged in advance of 23 November, I have no evidence on when they were booked, and perhaps OE went through with them just to double check his selection of HFC. I consider it more likely than not though that by this stage there was also an element of ejecting those solicitors out of the pool of lawyers who the wife might consult.

[Yeah, that’s my view too….]

48. Turning to some of the evidence about the meeting itself. OE said in his statement at paragraph 5 that his earlier meetings overran, that is his earlier meetings with the firms Mischon de Reya and Stewarts Law. This was not his account in evidence, which put the Stewarts meeting finishing at 1.30 to 2 pm. He dealt with his arrival in both his statements and in neither did he say anything about a gap between the solicitors’ meetings.

49. I thought his account of his movements that day seemed to be made up on the spur of the moment, in particular his trip to the hairdressers after his meeting with Stewarts in Fetter Lane and before his attendance at Sears Tooth. That seemed to me to arise from his realisation that in his evidence he had created a window of time that was inconsistent with his earlier account. Why he would call Sears Tooth to say that he was running late is hard to fathom when on his own account he was not. The haircut story seemed to mirror the new explanation he had given slightly earlier in his evidence of having a manicure to fill the gap between the end of his Sears Tooth meeting and the time on the attendance note.

50. I got the overall impression that despite saying on a number of occasions that he had a clear recollection of the meeting, that actually his recollection was not clear at all. The most obvious example was that he clearly and firmly, but erroneously, asserted that Natasha Slabas was present at the meeting. I think he had simply looked at the Sears Tooth website and identified someone he thought had attended and then embellished his account by making reference to that person having an Eastern European connection.

51. The what I have termed an attendance note at B19 could be capable of corroborating his account, in particular if I was satisfied it was both contemporaneous and accurate. The timing on it at C10 puts it at either 6.02 pm or 7.02 pm GMT. OE said this time may be when it was last amended, but it tells me nothing about when it was started, nor does it, or he, tell me what the amendments were to it. It could be as much some aide memoire, put together after all the meetings concluded with some points he wanted to relay to the husband, as anything else. Curiously the meeting with Raymond Tooth comes second in his note before the single entry for what he said arose from his prior meeting with Stewarts. If these were truly contemporaneous notes that seems odd. Given my general concerns about how reliable and accurate a historian OE is, I cannot even determine whether what he ascribes to Raymond Tooth is accurately ascribed. It could have come from any of the meetings, or indeed nowhere, as the presence of Ms Slabas did.

52. OE’s notes of the meeting are so short as to suggest almost nothing about the content. They do not identify who the other meetings were with, for instance. He said his notes of the meetings on 17 November were much more extensive.

53. Perhaps HFC were indeed selected then whilst OE and the other lawyer, TB, were both present. It would make sense that the selection was made with the input of the husband’s Russian lawyer present. That suggests that these later meetings were indeed subsidiary and what took place was, relatively speaking, unimportant.

54. Even if OE is right in what he ascribes to Mr Tooth, it gives no clear insight into what might have been discussed. Why would a bulletproof jurisdiction be of relevance to the husband? He had his divorce and was not contemplating further divorce jurisdiction. It might be of interest on the children, I suppose, in determining habitual residence and the ability to bring proceedings in England. What does the comment “no generous deed” tell me? It could relate to the wife and children living in England, it might relate to maintenance. But even if OE had said the husband had paid the wife large sums, how could that be confidential?

55. OE gave no evidential context to the comments and what information they related to, it was really speculation as to what they might have related to rather than anything concrete. They could have been phrases conjured from nothing. Given that on balance I do not feel able to rely on the attribution of those comments, it may not matter too much what they actually mean, but it all adds into a very unclear and unreliable picture.

56. OE’S account of the length of the meeting and whether it commenced on time has varied quite significantly from the correspondence to his statements. Whilst this may be relatively minor, in itself it supports a poor not a good recollection. OE is clearly not a person who keeps accurate records, or indeed very many records at all perhaps.

57. His assertion about Raymond Tooth’s strategic notes with a strategic map seems inconsistent with what is said about Raymond Tooth. It is also different to what he said in his statement where he described Raymond Tooth writing well-structured notes. In the letter of 9 March it was said that OE saw Ms Slabas taking notes in the meeting. In his statement he said, “I can’t be sure she took any notes although my recollection is she did”.

58. Neither Kelly Edwards nor Laura Broomhall recall the meeting and the evidence is it was usually one of those who was present.

59. The £700 per hour charging rate figure comes from nowhere. The other solicitors say he has never charged this or said he would. Mr Marshall QC said it might be the figure including VAT. I am not sure whether the husband would be eligible to pay VAT or not where he is resident.

60. Sears Tooth have retained no records at all. There is no copy identification, which OE did not mention providing in his first statement but referred to in evidence: “I may have given him a passport copy of the client”. There is no dictated or handwritten file notes, no bill. Mr Tooth described the process of making up a file and how it would be retained.

61. Much of what OE said about Mr Tooth’s attitude could derive simply from his public image. It is not consistent with what Mr Tooth or his assistants say about his attitude with clients, it is more caricature that a person who has not known him as a client might have.

62. OE says he has no notes or feedback or summary in written form about the firms which he provided to the husband. He said he had a telephone call with him. He said, “I did a verbal report, I read them out to him”, but he did not say why he had recommended HFC.

63. He also said at one point that he had the other appointments confirmed in his laptop, but he had not confirmed the one with Sears Tooth. I am not sure whether he was simply saying that he had not got email confirmation in that respect.

64. The evidence overall of Mr Tooth of the requirement for passport identification to be brought, of how files are made up with the handwritten and dictated notes and their storage is consistent with a brief and non-specific meeting at which little, probably not even the name of the principal, was disclosed. I very much doubt that the husband would want detailed disclosure of highly confidential information to a significant number of firms, in particular I doubt it would be authorised after he had retained his first choice firm. I very much doubt that OE was given free rein to disclose the husband’s highly sensitive financial and other dealings. Anything he was authorised to disclose would have been carefully vetted, particularly at this stage. The absence of a briefing note suggests to me that not much would have been disclosed.

65. The clear impression of strategising and manoeuvring emerges from the judgment of Mr Justice Peter Jackson, all designed to further the husband’s goals, often involving the deception of the wife and designed to strengthen the husband’s position in any future litigation and weaken the wife’s. The timing of the meetings with the six firms fits in with the later manoeuvring over the children being put in touch with lawyers early in 2016. The way the situation with the children was created suggests very careful planning and manoeuvring by the husband. The failure to be frank about the meetings with HFC mirrors the incomplete disclosure about the involvement with Dawson Cornwall in the children’s case.

66. I am led to conclude that the meetings with at least some of the six firms, probably all of those seen on 30 November; given the first three seen on the 17th or earlier clearly involved more serious consideration by OE and the Russian lawyer, the later ones were at least in part motivated not by a genuine consultation but a conflicting exercise.

67. I cannot conclude the whole process was. Indeed if it had been there are some other obvious names that would have been seen. Indeed, even by 30 November there may still have been some lingering or vestigial genuine reason for completing the survey of firms, but by 3 o’clock on 30 November 2017 I am satisfied that OE was not seriously considering instructing Sears Tooth and this undoubtedly influenced the nature of the meeting and the information given.

68. It is probably self-evident by now that I thought that OE was rather blasé about the need for accuracy in matters evidential. He seemed very relaxed about the fact that he had got it wrong about Natasha Slabas. He later said in his evidence he did not think it mattered much about being accurate. He said he was unaware of the need to be 100 per cent careful. I think that attitude generally infects his evidence. He is rather casual about details and seemed quite prepared to elaborate to suit the point he is trying to sell. I do not believe I can rely on the accuracy of his account.

69. Of course there are aspects of it which are true. There are aspects which are patently false. The latter does not mean the rest is false. The former does not mean the rest is true. He has of course a potential motive to exaggerate or fabricate because part of the purpose in seeing Sears Tooth may have been to conflict them out. In any event, his boss certainly did not want Sears Tooth acting and so as his head of his family office he has an obvious motive to do his boss’ bidding. The failure to disclose the earlier instruction of HFC and their retention simply adds to the picture of OE as being a witness who cannot be relied upon. To maintain he saw Sears Tooth with a genuine intent to consider instructions when he knew HFC had been retained and not to disclose that shows a lamentable attitude to the affirmation that he took to tell the truth, the whole truth and nothing but the truth. In saying what I have about OE I do not believe it was done with anything other than the Husband’s approval – this was not an agent going rogue but an agent doing his master’s bidding.

70. Overall Mr Tooth I conclude was the better witness. He conceded points which supported the meeting likely having taken place. He remains adamant he cannot recall anything about the meeting, which would be consistent with a short but uninformative meeting. I find it hard to ascertain why Mr Tooth would say he could not recall it if he could and why he would not have declined to act. As a solicitor with 50 years’ practice and with the reputation he has, what is one client more or less, why risk your reputation, indeed potentially more, if he was found to have misled the Court over the matter?

71. On the balance of probabilities, I do not find that any confidential material was imparted to Raymond Tooth or that any privileged information or advice arises. On balance I do not accept that the meeting was anything like that described by OE. I conclude that it was a very brief meeting which perhaps OE was attending to complete the job of going around the firms he had been instructed to with the parallel intention to conflict them. Whilst I cannot determine precisely, or even fairly closely, what was said and how the meeting developed, I conclude at most it may have been more in the nature of a brief and theoretical discussion, rather than the detailed, fact heavy, assets discussed, advice heavy meeting that OE seeks to portray. Mr Tooth described how some meetings were more general, about the law and how his position might depend on how the client put matters to him. It might of course have been far less than that, a perfunctory and very brief meeting which contained nothing of substance.

72. That being my conclusion on issues 2 and 3, I do not need to go on to consider issue 4, whether there is any risk of disclosure, nor do I need to consider my discretion in relation to whether an injunction should be granted or not. The application for an injunction is dismissed.

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