Coppola v Nobile - [2012] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
COPPOLA & ANOR v NOBILE & ANOR
[2012] SASC 42
Reasons for Decision of The Honourable Justice Stanley
22 March 2012
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
First defendant’s application seeking orders restraining the plaintiff’s solicitors from continuing to act for the plaintiffs – where the second plaintiff is the principal at the plaintiffs’ solicitor’s firm – whether the court should exercise its inherent supervisory jurisdiction over its officers to restrain the plaintiff’s solicitors from acting – whether the court has the power to grant the orders sought against a non-party.
Held: The court does not have the power to make the orders sought against non-parties to the principal action – however in the interests of justice order that the second plaintiff be restrained from continuing to act for the plaintiffs in the action.
Wills Act 1936 (SA) s 22, referred to.
Mitchell v Burrell & Anor Unreported, Supreme Court of New South Wales, Brereton J, 26 June 2008, distinguished.
Kallinicos & Anor v Hunt & Ors (2005) 64 NSWLR 561; Holborow & Ors v MacDonald Rudder [2002] WASC 265; Scallan v Scallan [2001] NSWSC 1078; Kooky Garments Ltd v Charlton [1994] 1 NZLR 587; Patrick Stevedores Operations (No 2) v Maritime Union of Australia (1998) 195 CLR 1, discussed.
Jones v Dunkel (1959) 101 CLR 298; Miles v Hughes Unreported, Supreme Court of Western Australia, Parker J, 11 November 1998, considered.

COPPOLA & ANOR v NOBILE & ANOR
[2012] SASC 42
Civil
STANLEY J:
Introduction

The first defendant brings an interlocutory application for orders restraining the plaintiffs’ solicitors, Peter Scragg & Associates, from continuing to act for the plaintiffs in this action. The application is opposed by the plaintiffs.
In the principal action, the plaintiffs have applied to have admitted to probate a will allegedly executed by Vittoria Coppola (“the deceased”) made on 2 June 1992. In the alternative, they seek to have admitted to probate a will allegedly executed by the deceased made on 18 April 1972.
The plaintiffs are the executors of the deceased’s estate pursuant to the will allegedly made on 2 June 1992.
The first plaintiff and the defendants are the three surviving children of the deceased.
The second plaintiff, Peter Scragg (“Mr Scragg”), was the solicitor for the deceased at the time she allegedly made her will dated 2 June 1992.
Background
The deceased died on 31 August 2009. On 7 September 2009 the first defendant lodged a caveat in the probate registry of the court against the deceased’s estate. A warning to the caveat was filed by the plaintiffs on 2 November 2009. On 3 February 2010 the plaintiffs lodged an application for a grant of probate in relation to the will allegedly made by the deceased on 2 June 1992.
Notwithstanding numerous requests by the plaintiffs to the first defendant that the caveat be discontinued, the first defendant has failed to do so.
The first defendant objects to either the 1992 or the 1972 wills being admitted to probate.
She does so on a number of grounds.
In respect of both wills, she alleges that:
1.the deceased lacked testamentary capacity;
2.the deceased lacked moral insight into the legitimate claims of the first defendant on her bounty, and her sense of right was perverted in that she was unable to discriminate between the respective moral claims of her three daughters;
3.in any event the wills were not properly executed in that she was illiterate, and the wills were not properly translated by a competent and independent professional interpreter.
In respect of the 1972 will she alleges that, in addition, it is ineffective in that it was revoked by the 1992 will in accordance with the provisions of s 22 of the Wills Act 1936 (SA).
In respect of the 1992 will she alleges that, in addition, it is ineffective because:
1.the will contains delusional statements by the deceased alleging criminal behaviour by the first defendant in the nature of threats against the deceased and her late husband over a 23-year period;
2.the will was entered into in consequence of undue influence by the first plaintiff, who was involved in the process of giving instructions for and the events leading to the execution of the will; and
3.the circumstances surrounding the execution of the will were such as to excite suspicions as to whether it contained the real intentions of the deceased, given allegations of her delusional behaviour.
Application to restrain the solicitors
The interlocutory application is supported by an affidavit of Nicola Minicozzi sworn 1 March 2012. It deposes to the fact that the second plaintiff, Mr Scragg, is the principal of the firm Peter Scragg & Associates, which has the conduct of the principal action on behalf of the plaintiffs. He asserts that Mr Scragg has appeared as counsel and solicitor in the matter before a master of the court on a number of occasions. He asserts that Mr Scragg will be an essential witness of fact at the trial. It is evident Mr Scragg will be called to prove the will. Mr Minicozzi deposes to instructions that Mr Scragg be cross-examined as to his involvement in taking the deceased’s instructions in relation to the 1992 will, and the circumstances surrounding the execution of that will. He also points to the appointment of Mr Scragg as an executor of the deceased’s estate pursuant to the 1992 will. He contends Mr Scragg might reasonably be thought to have a material interest in the outcome of the principal action by reason of that fact.
In response, Martha Ioannides, a solicitor in the firm of Peter Scragg & Associates, affirmed an affidavit on 5 March 2012 in which she deposes to the fact that the firm has rendered accounts to the first plaintiff, since the institution of the proceedings, amounting to approximately $62,000 by the end of February 2012. She notes that most of those fees remained unpaid, awaiting the outcome of the proceedings. She also deposes to the first plaintiff’s instructions that she wishes Mr Scragg and his firm to continue to act in the matter.
In her affidavit, Ms Ioannides also deposes to Mr Scragg’s involvement in the preparation of the principal action for trial. He prepared a “skeleton statement” of his evidence relevant to the matter, and this witness statement was subsequently finalised in consultation with Ms Ioannides. Otherwise, she deposes to the fact that she has prepared all of the statements of the other witnesses who it is intended will give evidence for the plaintiffs at trial, with the exception of the first plaintiff. Ms Ioannides deposes to the fact that a “skeleton proof” of the first plaintiff was prepared by Mr Scragg and provided to her. Subsequently this was substantially amended and the final witness statement was completed by her without any input from Mr Scragg.
Exhibited to her affidavit is a letter to Peter Scragg & Associates from the first defendant’s solicitors of 10 December 2010. I set out the terms of that letter:
I have been instructed to write to you raising issues for your consideration as to whether or not it is appropriate in all the circumstances for you to continue to act in the matter.
The Defence I have been instructed to file shows that you are likely to be a witness in the above action.
In Chapman v Rogers (1984) 1QdR 542 at 544 the Chief Justice of the Supreme Court of Queensland suggested that it would be unwise for a firm to continue to represent a client in such a case. Campbell CJ observed that it was:
“desirable to avoid any suggestion of real or apparent conflict between the duty to the court and the obligation to the client.”
Campbell CJ noted in Chapman v Rogers (supra):
“I consider that it is generally unwise for a solicitor, who has not himself appearing as advocate or as instructing solicitor in court but he was aware that it is likely that he will be called as a material witness (other than in relation to formal or non contentious issues) to continue, either personally, or through his firm, to represent the client if this can be reasonably avoided.”
In Yamaji and another v Westpac Banking Corporation and others (1993) 115 ALR 235 at 236 Drummond J in the Federal Court observed:
“I would, for myself, respectfully adopt those comments as words that need to be heeded by legal practitioners.”
To similar effect are the statements in numerous cases including Commissioner of Corporate Affairs v Harvey (1980) VR 669 per Marks J at 762 and Keppie v Law Society (ACT) (1985) 65 FLR 147, Clay v Karlson (1996) 17 WAR 493 and Scallan v Scallan (2001) NSWSC 1078.
As you would appreciate from the Defence, serious issues are raised both as to the testamentary capacity of the deceased at the time of the will for which probate is now sought, and more generally as to the process involved.
In these circumstances the writer cannot see that it could be suggested that you are not likely to be called as a material witness in the above action.
Subsequent to that letter, there is no evidence that any further action was taken in relation to this matter until it was raised in court by counsel for the first defendant, Mr Cameron, before me, on 9 December 2011.
On that occasion there was no application made for an injunction in relation to Mr Scragg or his firm continuing to act for the plaintiffs in the principal proceedings. Following the directions hearing, the solicitors for the first defendant again wrote to the plaintiffs’ solicitors by letter of the same date enclosing a copy of a judgment of the Supreme Court of Western Australia in Miles v Hughes, a judgment of Parker J dated 11 November 1998. The letter enquired of Mr Scragg’s firm whether the firm would continue to act for the executors and / or for the first plaintiff, in her capacity as a beneficiary, in the principal action. The letter put the plaintiffs’ solicitors on notice that if they continued to act in the matter, the first defendant may take out an application of the nature now before the court. That application was eventually filed on 1 March 2012. The matter came on for argument before me on 7 March 2012.
The principal action is listed for trial on 2 April 2012. The matter was set down for trial on 10 November 2011.[1]
[1] Albeit at that time the trial was set down for 10 April 2012.
Exercise of the power to restrain lawyers from acting
There are three categories of cases in which a court will restrain solicitors from acting in a matter. First, where a solicitor seeks to act, or acts against a former client, creating a risk that the solicitor might use, or be bound to use, information which he or she holds subject to a duty of confidence to the former client. Second, where a solicitor seeks to act, or acts against a former client in circumstances which would give rise to a breach of the duty of loyalty owed by the solicitor to his or her former client as a fiduciary. Third, in circumstances where the court considers, having regard to the supervisory jurisdiction it exercises over solicitors as officers of the court, that it is necessary to restrain a solicitor from acting in a matter, irrespective of whether or not to do so would infringe any legal or equitable right of the solicitors to act, where the conduct of the solicitors was so offensive to common notions of fairness and justice that they should, as officers of the court, be restrained from acting.
The first category, namely, breach of confidence, involves a claim to enforce a contractual or equitable right, namely, the protection of a confidence which the solicitor is bound to maintain even after the termination of his or her retainer pursuant to the contract of retainer and / or in equity. The second category, the breach of the fiduciary duty of loyalty, depends on ordinary equitable principles derived from a solicitor’s fiduciary duty. The third category is different, depending not upon legal or equitable rights of the parties, but on the court’s inherent supervisory jurisdiction over its officers. It is the third basis for intervention that the first defendant seeks to invoke in this case.
The principles relevant to the exercise of the court’s powers in this third category have been helpfully summarised by Brereton J in Kallinicos & Anor v Hunt & Ors[2] as follows:[3]
(1)    The Court always has an inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its processes in aid of the administration of justice.
(2)    The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
(3)    The jurisdiction is to be regarded as exceptional and is to be exercised with caution.
(4)    Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
(5)    The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.
[Citations omitted].
[2] (2005) 64 NSWLR 561.
[3] (2005) 64 NSWLR 561 at 582 at [76].
Examples of circumstances that fall within the third category were considered by Heenan J in Holborow & Ors v MacDonald Rudder.[4]His Honour identified examples of courts restraining solicitors from acting pursuant to the courts’ supervisory jurisdiction. These included cases where there was a potential that the legal practitioner might be a witness in the case; where the subject matter of the litigation was likely to involve an evaluation of the conduct of the solicitor concerned and the efficacy of documents prepared by the solicitor’s firm; and where a solicitor was acting for a liquidator in connection with the liquidator’s investigations into the prior activities of an insolvent company where the solicitor had, prior to the insolvency, been acting for the company.[5]
[4] [2002] WASC 265.
[5] [2002] WASC 265 at [23].
However, the mere circumstance that a solicitor will be a material witness, even on a controversial matter, does not necessarily justify restraining the solicitor from continuing to act.[6]
[6] Mitchell v Burrell & Anor, Unreported, Supreme Court of New South Wales, Brereton J, 26 June 2008 at [20].
In Scallan v Scallan[7] Windeyer J held that it was not unusual for instructing solicitors in contested probate proceedings to give evidence of facts relevant to instructions for, and execution of a will. Similarly, in contested conveyancing proceedings, it is not unusual for solicitors who acted on the conveyance to continue to act in the proceedings for specific performance or rescission, and to give evidence in those proceedings. His Honour considered that the boundary marking the line where the court should intervene to restrain a solicitor from acting in a matter where he or she may be called to give evidence, separates the case where the mere interest of the solicitor is one that arises simply in supporting the success of his or her client (for example, in connection with advice about discovery or the commencement or continuation or abandonment of proceedings), from the case where the solicitor has an interest in the result of an action “additional to his interest in doing his best for a client to have success in an action”.[8] It is the latter case where the court’s intervention is required.
[7] [2001] NSWSC 1078.
[8] [2001] NSWSC 1078 at [10].
Similarly, in Kooky Garments Ltd v Charlton[9] the court considered solicitors should be restrained in cases where they are, in effect, called on to defend their own actions or advice. The court reasoned that solicitors should be restrained where their acts or omissions are an integral part of the other party’s complaint, or the client has been sued in circumstances where he or she was acting on the advice of their solicitors and it is effectively that advice which is in issue.
[9] [1994] 1 NZLR 587.
To similar effect, in Mitchell v Burrell & Anor[10] Brereton J considered that the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involve the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings.[11]
[10] Unreported, Supreme Court of New South Wales, 26 June 2008.
[11] Unreported, Supreme Court of New South Wales, 26 June 2008 at [20].
Mitchell v Burrell & Anor[12] illustrates the application of these principles. The plaintiff sued the defendants, the plaintiff’s nephew and his wife, seeking a declaration that the defendants held their home on trust for the plaintiff or, in the alternative, subject to an equitable charge in her favour, it having been purchased substantially with funds provided by the plaintiff from the sale of her former home, allegedly on a common intention that the plaintiff would be beneficially entitled to the defendants’ home and / or entitled to reside in it indefinitely. The defendants denied the common intention asserted, and alleged instead, that the house had been made over to them by the plaintiff as a gift. The defendants sought an injunction restraining the plaintiff’s solicitors from acting on the basis that the solicitor for the plaintiff was likely to be a material witness on a controversial matter where his conduct and credit may be in issue in the proceedings.
[12] Unreported, Supreme Court of New South Wales, 26 June 2008.
In Mitchell v Burrell & Anor[13] the plaintiff’s statement of claim alleged that her nephew discouraged her from seeking legal advice with respect to the agreement pursuant to which she had sold her unit and used her savings and the proceeds of the sale of the unit to purchase the residential property in which she and the defendants would reside together indefinitely. The plaintiff alleged that subsequently she did not seek or receive legal advice with respect to the agreement to live together at the common intention property. The statement of claim was signed by the plaintiff’s solicitor. The defendants’ solicitors were provided by them with a copy of a letter sent to the plaintiff by her solicitor which purported to confirm earlier advice given to the plaintiff concerning issues related to the sale of the unit and the purchase of the residential property.
[13] Unreported, Supreme Court of New South Wales, 26 June 2008.
Brereton J made an order restraining the solicitors from acting for the plaintiff. His Honour considered there was reason to suppose that the solicitor’s conduct may come under attack and review because of potential anomalies between the facts pleaded in the statement of claim and certified by him on the one hand, and the contents of his letter of advice. His Honour considered there was a real chance that the solicitor could be called to give evidence by either the plaintiff or the defendants. He could be subjected to robust cross-examination if called by the plaintiff, or be the subject of an application for leave to cross-examine him as an adverse witness if called by the defendants, if his evidence-in-chief departed from the terms of the letter of advice he had provided to the plaintiff. If he was not called by the plaintiff, the failure to do so could give rise to a Jones v Dunkel[14] submission. In the circumstances, his Honour considered that a fair-minded, reasonably informed member of the public would entertain serious reservations as to whether decisions about the conduct of the plaintiff’s case would be made exclusively in the interests of the plaintiff, or to a greater or lesser extent, in the interests of her solicitor. In particular, there would be reservations as to whether decisions to call him or not to call him in the plaintiff’s case were influenced by his own interests as well as, or in place of, the plaintiff’s, and there would be concerns if he were called in the defendants’ case as to whether the vigour of any cross-examination of him was influenced by concern for his interests as distinct from those of the plaintiff.[15]
[14] (1959) 101 CLR 298.
[15] Unreported, Supreme Court of New South Wales, 26 June 2008 at [22] – [24].
Consideration

In the present case, there is reason to suppose that Mr Scragg’s conduct may come under review by the court at trial. The first defendant challenges the efficacy of the 1992 will on the basis that the deceased executed it at a time when she lacked testamentary capacity, was suffering from delusions, and made the will in consequence of the undue influence of the first plaintiff, who, it is alleged, was involved in the process of giving instructions to Mr Scragg for the making of the will. As I have said, Mr Minicozzi has deposed to instructions that Mr Scragg be cross-examined as to his involvement in taking the deceased’s instructions, and the circumstances surrounding the execution of the 1992 will. Coupled with the financial interest that Mr Scragg and his firm has in the success of the application to have the 1992 will admitted to probate, I am satisfied that a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Scragg should be prevented from acting, in the interests of protecting the integrity of the judicial process and the due administration of justice, including the appearance of justice.
I am satisfied that it is appropriate to restrain Mr Scragg from continuing to act in the matter, notwithstanding the first plaintiff’s wish that he continues to act. In my view, considerations grounded in the importance of maintaining the integrity of the judicial process and public confidence in the due administration of justice warrants such an order, notwithstanding the interests of the first plaintiff in having Mr Scragg act. Mr Scragg’s evidence goes beyond merely proving the will. His evidence will have to go to the circumstances in which he took instructions for making the will, his observations as to the influence being exercised over the deceased by the first plaintiff, his client, and his observations as to the deceased’s testamentary capacity. Moreover, his position is complicated by the financial interest he and his firm have in the administration of the deceased’s estate if the 1992 will is admitted to probate. In this context I note that the proceedings also concern an application, in the alternative, to have the 1972 will admitted to probate. In that event, I note that Mr Scragg is not named as an executor of the estate pursuant to that will. Accordingly, his financial interest in having the 1992 will admitted to probate is obvious. Mr Haines QC, for the plaintiffs, submitted, on the basis of the reasons of Parker J in Miles v Hughes,[16] that this is an irrelevant consideration. I disagree. Parker J restrained the solicitors from acting in that matter primarily because of the risk that the firm would be liable to the plaintiff in the action, to restore the status quo in the estate, if the firm’s client, the defendant, was unsuccessful at trial. However, his Honour did not regard as irrelevant the firm’s financial interest in the outcome of the action resulting from profit costs made by the firm in the administration of the estate. In fact his Honour considered this also made it undesirable the firm should continue to act.
[16] Unreported, Supreme Court of Western Australia, Parker J, 11 November 1998.
The plaintiffs also oppose the making of any order against Mr Scragg on the basis of the lateness of the application. As I have noted, the trial is listed to commence on 2 April 2012. I am nonetheless prepared to make the order sought by the first defendant as I am satisfied that restraining Mr Scragg at this late stage of the proceedings will not occasion significant prejudice to the plaintiffs in the conduct of the trial as it is apparent from the affidavit of Ms Ioannides, Mr Scragg has not had any real involvement in the preparation of the matter for trial for some time. Mr Haines QC, counsel for the plaintiffs, will be instructed by Ms Ioannides at trial. In recent times, she has been the solicitor with the actual conduct of the matter. In those circumstances, an order restraining Mr Scragg from acting will not occasion any significant prejudice to the plaintiffs or jeopardise the matter proceeding to trial on 2 April 2012. Although Ms Ioannides deposes to the fact that Mr Scragg no longer has any active involvement in handling the matter in his capacity as a solicitor he has not proffered any undertaking that he will not involve himself in doing so in the future. In these circumstances I am prepared to make an order restraining him.[17]
[17] While the application by the first defendant does not seek orders restraining Mr Scragg expressly, the order I propose to make is encompassed within the relief sought against his firm.
The orders sought by the first defendant, however, go beyond merely restraining Mr Scragg from acting in the matter. She seeks orders restraining Mr Scragg’s firm, Peter Scragg & Associates, from continuing to act for the plaintiffs in the principal action, and requiring them to take such steps as are necessary to remove the firm from the record as solicitors for the plaintiffs. Such orders would have the consequence that neither Ms Ioannides or any other solicitor in the firm of Peter Scragg & Associates could continue to act in the matter when the trial is due to commence on 2 April 2012.
I am not prepared to make an order restraining the firm from acting. I am not prepared to do so for both procedural and substantive reasons.
In Patrick Stevedores Operations (No. 2) v Maritime Union of Australia[18] the High Court said that the general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders as are needed to ensure the effective exercise of the jurisdiction invoked. This includes orders to prevent the frustration of its process. However, such orders are limited in that they may only be made against the parties to the proceedings against whom final relief might be granted.[19] Accordingly, an interlocutory injunction as sought here could only be made against the parties to the proceedings against whom final relief might be granted. As Mr Scragg is a party to the proceedings, an interlocutory order of the kind sought may be made against him. But his firm is not a party to the proceedings. It is not open to the court on an interlocutory application in the principal proceedings to make orders against non-parties including members of the second plaintiff’s firm, Peter Scragg & Associates. It follows therefore that even if I was satisfied that this was an appropriate case for the making of orders restraining the other members of Mr Scragg’s firm from acting, the court would lack the power to do so.
[18] (1998) 195 CLR 1.
[19] (1998) 195 CLR 1 at 33.
In any event, I am not satisfied that, in the exercise of the court’s discretion, it is appropriate to make such orders.
Orders are sought against Mr Scragg’s firm on the basis that other solicitors within the firm, employed by Mr Scragg, who might act in the matter, including Ms Ioannides, would by reason of that fact alone be unable to bring a proper professional and objective detachment to the proceedings. Additionally, it is contended that if the 1992 will is admitted to probate, it will be the firm that will benefit financially from Mr Scragg acting as the executor of the deceased’s estate, and therefore the conflict of interest which afflicts Mr Scragg, must also afflict the whole firm.
Whatever the merits of these arguments, I consider that they are overwhelmed by the discretionary consideration arising from the lateness in bringing this application. The matter was listed for trial at a listing conference in November 2011. The first defendant has been alert to these matters since at least December 2010. Yet no application was brought to seek orders restraining Mr Scragg’s firm from acting until 1 March 2012 at a time when the matter is set for trial on 2 April 2012.
Mr Haines QC, for the plaintiffs, submits that this interlocutory application constitutes an abuse of process for these reasons. I reject that submission. Nonetheless, I am satisfied that it is not only a relevant but a persuasive factor in the exercise of the court’s discretion in determining whether, had it been empowered to do so, the court should intervene to restrain the other members of Mr Scragg’s firm from acting.
Mr Cameron, counsel for the first defendant, submits that an order restraining the members of Mr Scragg’s firm, could be made at this time without necessarily jeopardising the trial proceeding on the allocated date. I very much doubt that this is so. Even if new solicitors, who might be instructed in the wake of the making of the orders sought, were to brief Mr Haines, they would be obliged to read the file and consider the matter generally, to familiarise themselves with the issues and the available evidence, to review witness statements, and otherwise satisfy themselves that the matter was ready to proceed to trial on 2 April 2012. I do not consider that the time available would afford fair opportunity for this to occur. On the contrary, I consider that to make the orders sought, assuming the court had the power to do so, would imperil the trial date. In this context, I note also that the first plaintiff has booked a flight and paid fares and has made provision for unpaid leave to be taken from her employment to attend the trial.
In Mitchell v Burrell & Anor[20] the New South Wales Supreme Court made orders of the kind sought here, but did so on the basis that the proceedings were still at a relatively early stage, that the objection was notified and agitated at the earliest reasonably possible time, and that as a result, additional costs, due to having to instruct new solicitors, would, at that stage, although not negligible, be relatively slight.[21]
[20] Unreported, Supreme Court of New South Wales, 26 June 2008.
[21] Unreported, Supreme Court of New South Wales, 26 June 2008 at [27].
This case is the precise opposite of Mitchell v Burrell & Anor[22].
[22] Unreported, Supreme Court of New South Wales, 26 June 2008.
Accordingly, had the court the power to make orders against members of Mr Scragg’s firm who are non-parties to the principal action, I would decline to do so in the exercise of the discretion reposed in the court, because of the cost and inconvenience which would result from the prosecution of the application at a very late stage, at a time when the first defendant had been alive to the issue for more than 15 months, and in circumstances where to make such an order would create a substantial risk that the trial would have to be adjourned.
Finally, the order I make restraining Mr Scragg from acting for the plaintiffs in the within action will not restrain him from acting as executor of the deceased’s estate if the 1992 will is admitted to probate. As I have said, Mr Scragg has an obvious financial interest in the outcome of the proceedings by reason of this fact, however, it would be futile to restrain him from acting as executor, if that comes to pass, where his firm was not restrained from doing so as well. This is because his financial interest, through the firm, would still exist even if the court restrained him from acting as executor in his own right but did not restrain the firm from doing so, and, for reasons I have explained, I am not prepared to make such an order against the firm.
Conclusion
I would order that the plaintiffs’ solicitor, Peter Scragg, be restrained from continuing to act for the plaintiffs in the within action.
I will hear the parties further as to the costs of the within application.
The first defendant is to bring into court minutes reflecting the court’s order.