Harris v Stiefel Research Australia Pty Ltd
[2013] VSC 90
•6 March 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 2918 of 2012
| RALPH STEPHEN HARRIS | Plaintiff |
| v | |
| STIEFEL RESEARCH AUSTRALIA PTY LTD (ACN 006 363 891) | Defendant |
---
JUDGE: | ALMOND J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2013 | |
DATE OF JUDGMENT: | 6 March 2013 | |
CASE MAY BE CITED AS: | Harris v Stiefel Research Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 90 | |
---
LEGAL PRACTITIONERS – Professional duties – Application for order restraining continued retainer of solicitors by party opposed to former client – Whether proceeding involves the same or a closely related matter as matters about which the solicitors had previously been retained – Whether Court should exercise its inherent jurisdiction to restrain continued retainer to protect due administration of justice – Fair-minded, reasonably informed member of the public would find it unnecessary for Court to intervene – Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Delany SC with Mr T Purdey | Lander & Rogers |
| For the Defendant | Mr N Hopkins SC | Norton Rose Australia |
HIS HONOUR:
For 15 years from about 1986 to 2001, Mr Peter George Willcocks, a partner of Rigby Cooke and then Lander & Rogers, acted on behalf of Stiefel Research Australia Pty Ltd (SRA) and gave legal advice to SRA in numerous commercial matters.
In 2011, Lander & Rogers was retained to act on behalf of Mr Ralph Stephen Harris in relation to a claim against SRA in which Mr Harris alleges that SRA owes him success fees under the terms of a consultancy agreement entered into in February 2000 and varied in March 2001.
In this application, SRA seeks an order that Mr Harris be restrained from retaining Lander & Rogers as his solicitors in the proceeding, relying on the equitable obligation of loyalty which, in certain circumstances, forbids a solicitor acting against a former client alternatively, on the overriding jurisdiction of the Court to intervene so as to protect the due administration of justice. It is common ground that Lander & Rogers is acting in this proceeding against a former client.
Applicable principles
There is no issue between the parties as to the applicable principles. In Pinnacle Living Pty Ltd v Elusive Image Pty Ltd,[1] Whelan J set out the principles as follows:
(1) The Court will restrain a legal practitioner from continuing to act for a party to litigation if a reasonable person informed of the facts might reasonably anticipate danger of misuse of confidential information of a former client, and that there is a real and sensible possibility that the interest of the practitioner in advancing the case in litigation might conflict with the practitioner's duty to keep the information confidential and to refrain from using that information to the detriment of the former client.
(2) The danger of misuse of confidential information is not the sole touchstone for curial intervention where a solicitor acts against a former client. There is also an independent equitable obligation of loyalty which forbids a solicitor acting against a former client in the same or a closely related matter. Intervention may also be justified on this ground in the exercise of a Court's supervisory jurisdiction over its own officers.
(3) There is an overriding jurisdiction to intervene so as to protect the due administration of justice arising where a reasonable informed member of the public would conclude that solicitors should be prevented from acting.
[1][2006] VSC 202, [14].
In Sent v John Fairfax Publications Pty Ltd,[2] Nettle J had cause to consider what constitutes a “closely related matter” in the context of an application to enjoin counsel from acting against a former client. His Honour said:
Questions of "the same matter" and "closely related matter" may sometimes be problematic. But in the end they are questions of fact and degree. In litigation, at least, there can be no doubt about what constitutes the same matter, and I do not think that there should be much doubt about what constitutes a closely related matter. If there are significant issues in one matter that arise in another, or factors which are significant to one matter which will be significant to another, the matters are likely to be closely related.
[2][2002] VSC 429 [108].
In Grimwade v Meagher, Mandie J characterised the test to be applied to protect the due administration of justice in similar terms as follows: [3]
The objective test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting at all times giving due weight to the public interest that a litigant should not be deprived or his or her choice of counsel without good cause.
[3][1995] 1 VR 446, 451; Spincode Pty Ltd v Cook Software Pty Ltd & ors [2001] VSCA 248 [40].
The current proceeding
The current proceeding concerns an agreement made between Mr Harris and SRA (under its former name Soltec Research Pty Ltd),[4] under which Mr Harris was engaged to provide consultancy services to SRA for which SRA agreed to pay Mr Harris a consultancy fee at a daily rate and success fees being ’10% of any upfront payments, licensing fees and royalties received by [SRA] of all business dealings between [SRA] and [Connetics Corporation (Connetics)] for the term of any licensing agreements negotiated with them.’[5]
[4]ASIC Historical Company Extract for SRA, Exhibit ANM-02 to the affidavit of Andrew Neil McRobert affirmed 6 February 2013. For convenience, I will refer to the company whether under its former name or its current name as SRA.
[5]Statement of claim filed 22 May 2012, [3] - [4]; Defence and counterclaim filed 4 July 2012, [4].
Among other things, Mr Harris alleges that:
· payments for licensing fees and royalties were to be made quarterly;
· there were terms of the consultancy agreement that SRA would not prevent nor frustrate the performance of its obligations under the consultancy agreement by refusing or failing to insist upon performance by Connetics of its obligations to pay SRA monies Connetics owed to SRA under various licence agreements;
· in acting in its legal relationship with Connetics and in its insistence upon performance of Connetics’ obligations to pay monies which Connetics owed SRA under the licence agreements and a Strategic Alliance Agreement, SRA was required to act in good faith and reasonably.[6]
[6]Statement of claim [4].
On or around 1 March 2001, Mr Harris and SRA agreed to vary the terms of the consultancy agreement by replacing various schedules with revised schedules, which were agreed to operate from the commencement date of the consultancy agreement, being 1 June 1997.
Mr Harris alleges that in furtherance of the consultancy agreement he provided consultancy services to SRA, submitted invoices for expenses incurred for those services and was paid consultancy fees and some success fees.
Among other claims, Mr Harris claims an entitlement to success fees with respect to three products; Luxiq, Olux and Extina, pursuant to licence agreements made between SRA and Connetics on or about 14 June 1996, 1 January 1998 and 14 July 1999 respectively.
Mr Harris alleges that some payments were made with respect to each product[7] but claims that he has not received his full entitlement to success fees with respect to the products in breach of the consultancy agreement and in breach of fiduciary duties alleged to be owed by SRA to properly administer the consultancy agreement and to collect and pass on Mr Harris’ entitlements.
[7]For the Luxiq product, these payments related to the licence fees and royalties; for the Olux product, these payments related to the licence fees and royalties on net sales, net revenue and upfront payments; for the Extina product, these payments related to the licence fees: statement of claim [17], [27], [36]-[37] (respectively).
Further allegations are made under a Strategic Alliance Agreement made on or about 9 December 1999 with respect to the product Evoclin, Rogaine, Verdeso, OluxE, Sorilux and Maxclarity, and in respect of which Mr Harris separately claims entitlements.[8]
[8]Statement of claim [40] – [50].
There are two issues for determination:
(1) Is Lander & Rogers acting against a former client in the same or a closely related matter?
(2) Should the Court exercise its inherent jurisdiction to intervene so as to protect the due administration of justice?
Senior counsel for SRA submitted, and I accept, that there is no clear demarcation between the two issues in this case. In substance SRA relied on the same material to support its case on each issue.[9]
[9]Except in relation to Mr Willcocks acting in relation to other matters. See 17(f) below.
In support of the application, SRA relied on two affidavits of Andrew Neil McRobert with extensive exhibits and admissions made by Mr Willcocks and others in affidavits filed in opposition to the application. [10]
[10]Affidavit of Andrew Neil McRobert affirmed 6 February 2013 (First McRobert Affidavit); Affidavit of Andrew Neil McRobert affirmed 22 February 2013 (Second McRobert Affidavit); Affidavit of Peter George Willcocks sworn 15 February 2013 (First Willcocks Affidavit) [10]; Further Affidavit of Peter George Willcocks sworn 21 February 2013 (Second Willcocks Affidavit); Affidavit of Grant David Levy sworn 15 February 2013 (Levy Affidavit); Affidavit of Jonathan Alexander Quilty sworn 21 February 2013.
It was submitted that:
(a)Mr Willcocks, first in his capacity as a partner of the firm Rigby & Cooke and then at Lander & Rogers, acted for SRA for approximately 15 years and throughout the period during which SRA entered into all of the agreements which are relevant to the issues in dispute in this proceeding and that Lander & Rogers has acted for SRA in at least 10 separate matters including in respect of matters which are closely related to this proceeding.[11]
(b)Whilst at Lander & Rogers, Mr Willcocks advised SRA in relation to the Extina licence agreement, an amendment to the existing Olux licence and the Medeva PLC licence agreement.[12]
(c)The resolution of the matters in dispute at trial will turn on the proper construction of agreements in relation to which Lander & Rogers acted as SRA’s solicitors.
(d)Mr Willcocks had a close working relationship with Dr Ross MacDonald, the managing director of SRA.
(e)Lander & Rogers acted for Faulding and SRA in the acquisition by Connetics of SRA shares.[13]
(f)Mr Willcocks has acted for associates of SRA in various other matters.
[11]First McRobert Affidavit [67], [69]; Second McRobert Affidavit [8] and Exhibit ANM14 thereto.
[12]First Willcocks Affidavit [12].
[13]First McRobert Affidavit [26], [63]; First Willcocks Affidavit [6]-[8].
I will deal with each of these submissions. It is convenient to deal with (a), (b) and (c) together.
(a), (b) and (c) – Mr Willcocks’ relationship with SRA
Mr Willcocks deposes that neither he nor Lander & Rogers were involved in the negotiation or preparation of any agreement (or any variation of any agreement) between Mr Harris and SRA, and that he had never advised SRA in relation to any agreement between Mr Harris and SRA.[14]
[14]First Willcocks Affidavit [10].
Mr Willcocks deposes that he did advise SRA in relation to the Extina, Olux and Medeva PLC licence agreements by recommending amendments to drafts of those agreements which were provided to him for comment.[15]
[15]First Willcocks Affidavit [12].
Senior counsel for Mr Harris submitted that there is no contest in the proceeding concerning the terms of the licence agreements pursuant to which Connetics is obliged to pay SRA fees and royalties on net sales of the relevant products; that the case essentially concerns construction of the consultancy agreement (the original consultancy agreement and the March 2011 amendment), the implication of terms and whether or not having regard to the nature of, and the obligations under, those agreements, fiduciary obligations arise and were breached. It was submitted that it is not a case where whatever knowledge Mr Willcocks might have gleaned from dealings he may have had with SRA as a legal practitioner, would be in any way relevant.
As Nettle JA observed in Sent, the question whether one matter is closely related to another is one of fact and degree. The fact that Mr Willcocks acted for SRA for approximately 15 years, first at Rigby Cooke and then at Lander & Rogers, throughout the period during which SRA entered into all of the agreements which are relevant to the issues in dispute in this proceeding warrants examination, but is a temporal coincidence which is not of itself sufficient to warrant curial intervention.
In its defence, SRA admits the Olux, Extina and Luxiq licence agreements in accordance with their terms. There is no reference to the Medeva PLC licence agreement in the statement of claim or in the defence.[16] In the First McRobert Affidavit, Mr McRobert identifies clauses in the Luxiq and Olux licences and the Olux amendment which refer to the Medeva PLC licence. None of these clauses are referred to in the statement of claim. This suggests that it is unlikely that any contentious issue will arise for determination at trial involving the Medeva licence agreement. At least there is no indication at this stage that there is any dispute between the parties as to the terms of the Medeva PLC licence agreement. Accordingly, I am not satisfied that the advice Lander & Rogers gave regarding the Extina licence agreement, the Olux licence amendment and the Medeva PLC licence agreement are closely related to the issues which will arise for determination in this proceeding.
[16]There is one reference to the entity Medeva in the particulars to paragraph seven of the Statement of Claim in Schedule I.
The issues which will arise for determination at trial concern Mr Harris’ entitlement to payments under the consultancy agreement and the amendments to the consultancy agreement. I accept the evidence of Mr Willcocks that he had no involvement in the negotiation or preparation or the giving of advice in relation to the consultancy agreement or its amendment. In the circumstances, I am not satisfied that the issues which will arise for determination at trial are sufficiently related to the various matters in which Lander & Rogers acted as SRA’s solicitors to be fairly regarded as “closely related“. Had Lander & Rogers been retained to draft or advise on the consultancy agreement or its amendment, the position would have been different.
(d) Mr Willcocks’ relationship with Dr MacDonald
Senior counsel for SRA submitted that the documents show that Mr Willcocks had a close working relationship with Dr MacDonald, the managing director of SRA during the relevant period,. In particular, SRA relied on an email from Dr MacDonald to an in-house lawyer at Faulding Pharmaceuticals and F & H Faulding & Co Ltd (Faulding) in 2001 in which Dr MacDonald states:[17]
[Y]ou may wish to consider Lander and Rogers, a Melbourne firm that has drafted many of [SRA’s] contracts. Our point of contact, Peter Willcocks, one of the partners, has been associate [sic] with [SRA] for over 10 years and knows the business very well. He was also involved in the original acquisition by [Faulding].
[17]First McRobert Affidavit [26].
Subsequently, Lander & Rogers acted for Faulding on the acquisition of SRA by Connetics in 2001 (apparently) as a result of the referral and recommendation of Dr MacDonald.[18]
[18]First McRobert Affidavit [63].
Senior counsel for SRA referred to the Statement of Claim, and in particular to the allegation that the terms of the consultancy agreement and the amending agreement are partly oral, constituted by conversations which took place between Mr Harris and Dr MacDonald on behalf of SRA in or around January 2000 (in the case of the consultancy agreement) and in or around January and February 2001 (in the case of the amendment to the consultancy agreement).[19] Senior counsel for SRA submitted that Dr MacDonald is likely to be a key witness in the proceeding.
[19]Statement of claim [3], [5].
Senior counsel for Mr Harris submitted that the involvement or otherwise of Dr MacDonald will be limited; that the only oral term relied on by Mr Harris in relation to the consultancy agreement is that payments were to be made quarterly; that the terms of the amendment to the consultancy agreement are admitted and that therefore there will be no need for oral evidence in relation to the amendment to the consultancy agreement in 2001. It was further submitted that the only matter that Mr Harris would either seek to prove through Dr MacDonald or would need to cross-examine him about if he was called by SRA is the oral term that payments to Mr Harris were to be made quarterly.
I am not persuaded that the “close working relationship” that Mr Willcocks may have had with Dr MacDonald is sufficient to require that Mr Harris to be restrained from retaining Lander & Rogers as his solicitor in the proceeding.
First, the scope of the issues on the pleadings which directly involve Dr MacDonald appear to be limited to the narrow issue whether there was an oral agreement that the payments to Mr Harris were to be made quarterly. Second, it was not contended that any credit issues will arise concerning Dr MacDonald. Third, it is not clear that Dr MacDonald will necessarily be called as a witness. He no longer works for SRA.[20] As senior counsel for Mr Harris submitted, the Court would probably imply a reasonable time for payment if no express term is proven.
[20]First Willcocks Affidavit [14].
Further, Mr Willcocks deposes that: [21]
Since the potential for a conflict was identified and the institution of an information barrier within Lander & Rogers I have had very limited contact with personnel working on the matter. I have not discussed this matter or the earlier matters in which I acted for SRA with those personnel and I have prepared this affidavit solely in consultation with Counsel appearing on the application.
[21]First Willcocks Affidavit [16].
I accept this evidence. In the circumstances, I am satisfied that Mr Willcocks (the individual) is and will continue to be disengaged from the litigation and that any close working relationship he might have had with Dr MacDonald will not impact on the conduct of the proceeding by Lander & Rogers (the firm).
(e) Lander & Rogers acted in the Connetics acquisition of SRA shares
While at Rigby Cooke, Mr Willcocks acted on behalf of the individual shareholders of SRA who sold their shares to Faulding.[22]
[22]First Willcocks Affidavit [4], [6].
In early 2001, Mr Willcocks acted for Faulding on the sale of its SRA shares to Connetics. According to Mr Willcocks, the role of Lander & Rogers in the sale of SRA shares from Faulding to Connetics was chiefly to coordinate the due diligence process and to prepare and settle the share sale agreement; that in carrying out that role Lander & Rogers was provided with all agreements and documents that were to be disclosed to Connetics, compiled lists of those documents and gave Connetics access to those documents. From time to time during the sale process, some discrete legal issues arose upon which Lander & Rogers was asked to advise, including questions of legal professional privilege attaching to advice on patents and on the question of whether Faulding or SRA was the employer of certain employees.[23]
[23]First Willcocks Affidavit [7] and [8].
Mr Willcocks deposes that in the course of carrying out the due diligence process Lander & Rogers was provided with copies of agreements between Mr Harris and SRA and an email advising that an amendment to the agreement with Mr Harris had been executed.[24] While Lander & Rogers was carrying out the due diligence process Connetics’ lawyers from the United States sought confirmation regarding whether SRA had agreed with Mr Harris that he will be entitled to fees regarding any new technologies. Subsequently, Faulding provided to Mr Willcocks a copy of the amendment to the consultancy agreement dated 1 March 2001 which Lander & Rogers sent by facsimile transmission to Connetics’ lawyers.[25] Mr Willcocks deposes that he was not asked to nor did he give any advice with respect to the amendment letter dated 1 March 2001 and that the relevant information when it was provided to Lander & Rogers by Faulding was merely forwarded to Connetics’ lawyers in the United States.[26]
[24]First Willcocks Affidavit [9].
[25]Second Willcocks Affidavit [6] and Exhibits PGW-1, PGW-2, PGW-3 and PGW-4 thereto.
[26]Second Willcocks Affidavit [6], [7].
Senior counsel for the applicant submitted that the Court should infer that Lander & Rogers acted for SRA as well as Faulding in relation to the acquisition of SRA by Connetics in 2001. The applicant contends that:
· By the time of the Connetics acquisition Mr Willcocks had acted for SRA for about 15 years.
· There is no evidence of SRA being represented in the Connetics acquisition by any other firm of solicitors.
· Lander & Rogers drafted an agreement described as Injectibles Transfer Agreement on the Connetics acquisition to which SRA was a party;[27]
· Lander & Rogers routinely took instructions from Dr MacDonald about various issues that arose in the course of the Connetics acquisition; and
· Lander & Rogers gave advice to SRA regarding legal professional privilege in a patent related matter by letter dated 6 March 2011.[28]
[27]Exhibit ANM-11 to First McRobert Affidavit, tab LL.
[28]Exhibit ANM-11 to First McRobert Affidavit, tab Q.
I am not persuaded that I should infer that Lander & Rogers acted on behalf of SRA as well as Faulding in the Connetics acquisition for the following reasons:
First, there is the evidence of Mr Willcocks that he acted only for Faulding on the sale of its SRA shares to Connetics.[29] I accept that the existence of an implied retainer is to be determined according to an objective test and the lawyer’s belief is not determinative, but some weight can be given to the belief of an experienced legal practitioner.
[29]First Willcocks Affidavit [7].
Second, Faulding (and Connetics) were also parties to the Injectibles Transfer Agreement. The fact that SRA was a party to the agreement is not inconsistent with Lander & Rogers acting only for Faulding. Third, at the relevant time in 2001 it would appear that Dr MacDonald was the Vice-President (Injectible Product Development) of Faulding Pharmaceuticals Asia-Pacific.[30] Fourth, the letter of advice from Lander & Rogers dated 6 March 2001 regarding legal professional privilege is addressed to Faulding and on its face is a response to a request by Faulding about whether certain documents prepared on behalf of SRA were privileged and the consequences of disclosure of such documents to Connetics. Mr Willcocks was the author of the letter of advice in which he expresses a preliminary view that documents produced for SRA by patent attorneys are the subject of legal professional privilege and that disclosure of such documents to Connetics would be likely to result in the loss of legal professional privilege. This letter of advice was copied to Dr MacDonald at his SRA email address.[31]
[30]Email from Mr Harris dated 26 February 2001 to Dr MacDonald: ANM-11 to First McRobert Affidavit, tab c
[31]First McRobert Affidavit [58].
Other letters of advice were written on other issues arising at the time. Each were addressed and sent to Faulding and were copied to Dr MacDonald at his SRA email address.[32]
[32]First McRobert Affidavit [59] - [62].
It appears that Dr MacDonald occupied two roles at the time the due diligence process for the Connetics acquisition was being undertaken. He was the Vice-President (Injectible Product Development) of Faulding[33] and simultaneously Managing Director of SRA.
[33]Exhibit ANM-11 to First McRobert Affidavit, tab C.
It is clear that advice which was prepared for and addressed to Faulding was copied to Dr MacDonald at SRA. Presumably SRA obtained the benefit of the advice to the extent that it was relevant to SRA. It is not necessary to decide whether this gave rise to an implied retainer of Lander & Rogers by SRA, but if it did, in my view the retainer would be confined to the specific advice given.
However, it is necessary to decide whether the giving of such advice, or allowing SRA to take the benefit of such advice in the context of conducting due diligence for the acquisition of Faulding’s SRA shares by Connetics, constitute matters which are closely related to the matters in issue in this proceeding. In my view, the answer is clearly no.
I accept the submission of senior counsel for Mr Harris that in the course of coordinating the due diligence for the sale of shares in SRA from Faulding to Connetics in 2001 Mr Willcocks and Lander & Rogers were provided with copies of agreements between SRA and Mr Harris and information that the 2001 amendment to the consultancy agreement had been executed, but neither Mr Willcocks nor Lander & Rogers were involved in the negotiation or preparation of the consultancy agreement or the March 2001 amendment to the consultancy agreement, or any other agreement between SRA and Mr Harris. In the circumstances, conducting the due diligence process in the Connetics acquisition of SRA shares in 2001 is not an obstacle to Mr Harris continuing to retain Lander & Rogers on his behalf in this proceeding. In my view, the matters are not closely related.
(f) Other matters
Lander & Rogers has acted for SRA in various other matters.[34] The relevant files were opened during the period 1999 to February 2000. Mr Willcocks deposes that he has not acted for SRA since Connetics acquired the company in 2001.[35] It is not suggested that these files involve closely related matters. Rather, it was submitted that the fact that Lander & Rogers acted in these other matters serves to reinforce the impression in the mind of a fair-minded, reasonably informed member of the public that Lander & Rogers ’has moved over from the SRA side of the fence in accepting instructions to act for Mr Harris in this proceeding.’[36]
[34]First McRobert Affidavit [67].
[35]First Willcocks Affidavit [13].
[36]Defendant’s outline of submissions filed 8 December 2011 [51].
Is there a need to protect the due administration of justice?
I accept the principle expounded and emphasised in the authorities that not only must a solicitor’s duty be discharged but must be seen to be discharged.[37]
[37]QGC Pty Ltd v Bygrave (2010) 269 ALR 589; Maguire v Makaronis (1997) 188 CLR 449, 495.
I am also mindful that the Court’s jurisdiction to restrain a solicitor from acting in a particular case is exceptional and must be exercised with caution, and that a litigant should not be deprived of his or her choice of lawyer without good cause.[38]
[38]Grimwade v Meagher (1995) 1 VR 446, 451; Kallinicos v Hunt (2005) 64 NSWLR 561 [76]; Premier Capital (China) Ltd v Sandhurst Trustees Ltd [2012] VSC 611 [2].
Senior counsel for Mr Harris submitted that SRA has failed to make out good cause for removal of Lander & Rogers in this case, particularly where there is no allegation that Lander & Rogers have any relevant confidential information of SRA; that the case essentially concerns the construction of agreements, the implication of terms and whether or not having regard to the nature of the agreement and the obligations, fiduciary obligations arise and that it is not a case where knowledge Mr Willcocks may have gleaned or dealings he may have had when acting as legal practitioner for SRA (at Rigby Cooke or at Lander & Rogers) would be relevant to the matters in dispute in this proceeding.
In addition, Mr Harris relied on evidence that an information barrier had been instituted at Lander & Rogers in accordance with the “Information Barrier Guidelines” prepared by the Law Society of New South Wales in consultation with the Law Institute of Victoria and adopted by the Law Institute of Victoria.[39]
[39]Exhibit GLB-1 to the Levy Affidavit (Guidelines).
Mr Levy deposes that he is a partner of Lander & Rogers and has assumed the role of compliance officer required under the Guidelines and has ensured that steps have been undertaken in accordance with the Guidelines, including ensuring that:
· written undertakings have been obtained from Lander & Rogers’ professional staff involved with the current dispute that they did not obtain any confidential information about the earlier matters and will not in future seek any confidential information from Mr Willcocks in relation to the earlier matters;
· a separate written undertaking has been obtained from Mr Willcocks to not discuss the earlier matters with, or provide any relevant confidential information about the earlier matters to Lander & Rogers’ professional staff involved in the current dispute; and
· contact between Lander & Rogers professional staff involved in the current dispute Mr Willcocks is limited to ensure that the passage of information or documents between those involved in the current matter and earlier matters does not take place.[40]
[40]Levy Affidavit [6].
Delay
A material factor in the present case is the fact that Mr Harris retained Lander & Rogers to act on his behalf in this matter in or about February 2011 and the litigation has been on foot since 22 May 2012. Pleadings have closed, discovery and inspection are complete and the matter is about to progress to mediation and, if necessary, to trial. I do not criticise the applicant for delay in bringing this application because the matters on which it relies are substantially based on information obtained upon inspection of documents. However, the fact remains that a lengthy period of time has passed and the litigation has been substantially progressed by Lander & Rogers for and on behalf of Mr Harris.
Scope of the dispute
It is common ground that the scope of the issues in dispute is ‘quite narrow’. The essence of Mr Harris’ claim is that SRA frustrated or prevented performance of its obligations to Mr Harris ‘under the consultancy agreement by refusing or failing to insist upon performance by Connetics of Connetics’ obligations to pay monies which Connectics owed to [SRA] under the licence agreements and the [Strategic Alliance Agreement.]’[41] It seems therefore that the central focus at trial will be on conduct of SRA after the Connetics acquisition of SRA shares in 2001. Mr Willcocks ceased acting for SRA after the Connetics acquisition in 2001[42] and the vast bulk of the claim (approximately $3.8M or more than 97%) concerns alleged entitlements that post date 2001.
[41]Plaintiff’s outline of submissions [8] adopted in oral submissions by the defendant.
[42]First Willcocks Affidavit [13].
Nevertheless, I will assume that SRA’s conduct during the period 1999 to 2001, coinciding with the period when Lander & Rogers was still acting for SRA and owed fiduciary duties to its client, may need to be scrutinised. The difficulty for the applicant is that it is not evident that any question in the proceeding concerns or might concern a breach of the fiduciary duties owed by Lander & Rogers while it acted for SRA. No advice was given by Lander & Rogers concerning the Harris matter. No issue of SRA’s conduct in relation to Mr Harris arose while Lander & Rogers was retained by SRA, and it is not suggested that Lander & Rogers has the benefit of any information, confidential or otherwise, which would lead to any unfairness or perceived unfairness in permitting Mr Harris to continue to retain his solicitors.
All things considered, in my view a fair-minded, reasonably informed member of the public would not conclude that the proper administration of justice requires that Mr Harris should be prevented from retaining Lander & Rogers as the lawyer of his choice.
In the circumstances, the application must be dismissed.
2
6
0