Woman granted interdict to prevent solicitors’ firm acting for estranged husband in divorce action

Kae Murray sought an interdict after a lawyer who acted for her when the couple signed a pre-nuptial agreement later joined the firm which was representing Sir David in the proceedings following their separation.

A judge in the Court of Session granted the interdict after ruling that the firm had “confidential information” about Mrs Murray and that the order was necessary to ensure the “appearance of justice”.

‘Confidential information’

Lord Brailsford heard that the petitioner Mrs Murray and Sir David were married in 2011.

Prior to their marriage they entered into a pre-nuptial agreement regulating financial affairs in the event of the marriage terminating in divorce.

Turcan Connell (TC) acted for Sir David in the negotiation and preparation of the pre-nuptial agreement, while the petitioner was represented in the negotiation and preparation of the pre-nuptial agreement by solicitor Noel Ferry, then head of family law in another firm of solicitors, Maclay Murray & Spens.

In 2013 Mr Ferry joined TC initially as a senior associate and from April 2015 as a partner working in that firm’s Glasgow office in the field of family law.

Since joining the firm Mr Ferry has not acted for nor had any dealings with the petitioner, but since her marriage to Sir David the Mrs Murray has on a number of occasions instructed and obtained advice from another partner of TC, Mr Peter Littlefield, who deals primarily with trust and tax matters for private clients.

The couple separated in March 2018 and the petitioner instigated divorce proceedings against SDM.

She was represented in the divorce proceedings by a firm of solicitors specialising in family law, SKO, while Mr Murray was represented by TC.

In the divorce proceedings, the petitioner was seeking to set aside the pre-nuptial agreement and, further, made financial claims both in relation to capital and aliment.

‘Potentially prejudicial’

An eight-day proof date was fixed for February 2019, but during a case management hearing last September the petitioner raised the issue of potential disclosure of information confidential to her by Turcan Connell and subsequently lodged the present petition claiming that it was “inappropriate” for TC to continue to act in the divorce.

It was alleged that the confidential information included “retained knowledge”, that is information for which there are no documents but which depends on the memory of a person.

The petitioner contended that Mr Ferry had retained knowledge in relation to the petitioner’s affairs arising from his involvement on her behalf, albeit when employed by a different firm of solicitors, in the preparation and negotiation of the pre-nuptial agreement.

The confidential information was also said to include papers contained in two files compiled by Mr Littlefield when giving private client advice to the petitioner during the tenure of her marriage.

The hard copies of these files were passed by Turcan Connell to SKO in implement of a mandate, but TC retained within its IT system electronic copies of the files, although the partner permitted to have access to the files had no previous involvement in the affairs of either the petitioner or Mr Murray.

Mrs Murray’s position was that TC had information held by Mr Ferry as a result of his having been the petitioner’s advisor in relation to the pre-nuptial agreement and the information contained in the two files relating to work done by Mr Littlefield on behalf of the petitioner during the course of the marriage was confidential to her.

She had not waived her right to confidentiality and the information was not in the public domain.

The material, which was of a financial nature, was directly relevant to her claims in the divorce action and to her position as regards potential settlement – knowledge of which was “potentially prejudicial” to her interests.

In seeking to invoke the inherent power of the court to supervise its officers, it was contended that the administration of justice, including the appearance of justice, required to ensure the integrity of justice in circumstances where a firm of solicitors, or members of that firm, had knowledge of a confidential nature belonging to a former client and where the solicitors acted for a person now involved in either litigation or who was in dispute with the former client.

‘Appearance of justice’

Granting interdict, the judge considered that the order was “justified” because Turcan Connell had failed to put in place sufficient safeguards to eliminate the risk of disclosure of the confidential information to protect the position of the former client.

In a written opinion, Lord Brailsford said: “In the present case TC acted for both the petitioner, albeit on a limited and ad hoc basis, and SDM throughout, broadly, the tenure of their marriage. I have found that in the course of acting for the petitioner TC acquired information confidential to her knowledge of which, if acquired by SDM, could be advantageous to that person and prejudicial to the petitioner’s interests in the conduct of the divorce litigation.

“In my opinion, the court, and for that matter the solicitors’ profession, is rightly concerned to ensure that solicitors do not, in circumstances such as these disclose, whether by inadvertence or otherwise, information confidential to a client or former client which might result in prejudice to that client. Whilst no information was placed before me I am aware, as a matter of judicial knowledge, that the Law Society of Scotland have guidelines or rules regulating solicitors’ conduct in situations where conflict may arise.

“It is therefore, in my view, a relatively easy step to conclude that in order to ensure that the ‘appearance of justice’, is preserved the court will take a rigorous or strict approach to the operation of its inherent power in circumstances such as have arisen in the present case. On the basis of that consideration I conclude that, as is the case here, where the court is not satisfied that sufficient precautionary measures have been taken by solicitors to protect the interests of clients or former clients the inherent jurisdiction would be an appropriate vehicle for providing protection to the client or former client facing potential prejudice.”