Discussion
Whether an injunction may only be granted against a party to the action 75.I accept that generally speaking an order will not be made against a person who is not party to the proceedings. But as Pumfrey J pointed out in Re Recover Ltd v Latif Group SL [2003] EWHC 536 (Ch); [2003] 2 BCLC 186, the court has jurisdiction to do so at least in the case of solicitors: “[15] There is no doubt that the court retains a supervisory jurisdiction over solicitors which permits it, in a proper case, to take steps to ensure that a solicitor does not remain on the record for a party in litigation. That jurisdiction must, in my view, be exercised with caution, as in general parties to litigation are entitled to the advisers they have chosen.” 76.Had I not been satisfied that this court has jurisdiction to make the order sought with the pleadings as they are, I would have entertained an application by Glencairn to join Virtuoso as a defendant. The principal issues to be resolved 77.I must consider: (1)Whether Virtuoso is in possession of information which is confidential to Glencairn. (2)Whether that information is or may be relevant to the present litigation between Glencairn and Final Touch. (3)The likelihood that absent the order sought, Final Touch will become aware of that information, particularly having in mind the evidence regarding the information barrier within Virtuoso. (4)The likely prejudice, if any, to Glencairn if that information became known to Final Touch. (5)The likely prejudice to Final Touch if I were to make the order sought. 78.Glencairn bears the overall burden of proof. Having considered the foregoing issues, and in so doing taken into account the matters which I have found to be relevant above, I must decide whether the balance of justice favours restraining Virtuoso from acting for Final Touch. Whether Virtuoso is in possession of information confidential to Glencairn 79.An unusual feature of this case was that the confidential information in issue was not disclosed to the court. Of course it could not form part of the information made openly available in the litigation but neither side attempted to arrange disclosure to Final Touch’s counsel only. Argument went ahead by reference only to possible and likely inferences as to what he confidential information might be. 80.Right at the end of the hearing Mr Barclay offered to provide me with a copy of the Settlement Agreement. Ms Wickenden submitted that I should not look at it. 81.I agreed with Ms Wickenden. Even if a copy had been passed to her and the court otherwise emptied on her side, she would not have been in a fair position to address me on it and of course could not have taken instructions to deal with any difficulty. The consequence would have been that this judgment may have turned in part, possibly in significant part, on matters known to me and Glencairn but not to Final Touch and in relation to which their counsel was not given fair chance to make submissions. 82.I must fall back on inferences. It may be that under the Settlement Agreement Dartington paid a stated sum to Glencairn. There may have been terms specifying that Dartington should redesign the glass complained of and how that should be done. If that information were made known to Final Touch it would undoubtedly give Final Touch an unfair advantage in any settlement negotiations which may yet take place. In fact, whatever the terms of settlement were, knowledge of them would give Final Touch an advantage. For instance, if Glencairn was prepared to settle the litigation with no payment at all, no doubt Final Touch would be interested to know. 83.Reference was made in the evidence and by Mr Barclay to the mediation strategy pursued in advance of the litigation. It is far less clear what this might include which would be confidential, not reflected in the main settlement terms and of interest to Final Touch. 84.On the limited information I have I will assume that the Dartington team at Virtuoso is aware of the contents of the Settlement Agreement and that at least some of this is confidential to Glencairn. My assumption goes no further. Whether the information is relevant to the present litigation 85. The confidential contents of the Settlement Agreement are particularly relevant to potential settlement discussions between Glencairn and Final Touch. The likely risk that Final Touch will become aware of the information 86. The risk that Final Touch will become aware of any confidential part of the Settlement Agreement depends on the effectiveness of the information barrier installed at Virtuoso. I will deal with the arguments raised by Mr Sleep, giving them the same letters. (a)I accept, for reasons already stated, that there is a higher risk that an information barrier in a small firm will be less developed and therefore less effective than one in a large firm. However, it does not follow that a disclosure barrier in a small firm can never be effective. It depends of the facts. (b)The short answer to the suggestion that before the installation of the information barrier one or more of Mr Popa, Ms Davies or Mr Walawage may have passed information to others while they were at the Leeds office is Ms Ward’s clear evidence that none of the Final Touch team – Ms Ward, Ms Wilson and Ms Waterman – have any knowledge of the confidential terms of the settlement. (Ms Ward rightly qualified her statement by reference to the ‘confidential’ terms since some terms, such as fact that the parties agreed to end their litigation, are public.) Mr Barclay did not invite me to decide that Ms Ward was not telling the truth about this. I have no reason to doubt Ms Ward’s evidence and I accept it. It does not matter what was said before the information barrier came down. Nothing of relevance reached the Final Touch team. (c)-(d) The same answer applies to Mr Sleep’s points (c) and (d). (e)Mr Sleep’s fifth point concerns the risk of what may happen in the future. I accept that there is regular contact between members of the team on each side of the information barrier and that this is likely to continue. In argument Mr Barclay illustrated this by website pictures of Virtuoso’s lawyers attending the same presentation, seated around the same table and other evidence of a similar nature recorded after the barrier was put in place. This is likely to be inevitable in a small firm and is one of the reasons why the risk in a small firm may be greater. But it also seems to me to be likely that all individuals are highly aware that nothing should be said about the Dartington litigation. The fact of this application having been made may well have made that understanding even more acute. It is also relevant that the Final Touch team works in Leeds whereas the Dartington team is for the most part in London. Ms Ward has explained that the Final Touch team cannot access the Dartington documents. Although Virtuoso does not run a completely paperless system, the Dartington litigation is now at an end so I have no reason to believe that there will be many, if any, new documents created on that subject or that they will be created in hard copy to which the Final Touch team will have access. I am satisfied that the likelihood that any confidential part of the Settlement Agreement will become known to any of the Final Touch team is very low. (f)Ms Ward has answered Mr Sleep’s sixth point. Ms Wilson is now a qualified solicitor and Ms Ward apparently feels that this makes for a workable team. (g)Ms Ward has also answered the principal aspect of Mr Sleep’s final point. The London office has moved and its address in Gray’s Inn Road has been made public. 87.Mr Barclay rightly pointed out that Final Touch’s evidence does not deal in much detail about how the information barrier works. In particular, the five arrangements identified by Lord Millett in Bolkiah at 238C-E (see above) were not addressed specifically. However, of those, (i) and (ii) are more appropriate to a firm of the size of KPMG. Arrangement (iii) assumes that some information will cross the barrier. I have found that the likelihood of this is very low. Again, it seems to me to be an arrangement appropriate to the circumstances of a case such as Bolkiah where the information in extensive and the number of individuals involved is large, so that some minor leak might be contemplated and may not matter provided that it is stemmed in good time. It would have been helpful for Ms Ward to have said something about (iv) and (v) – i.e. monitoring of the effectiveness of the barrier and disciplinary sanctions if there is a breach – but I can see that on the present facts the setting up of formal monitoring and discipline arrangements may not be necessary. Ms Ward’s supervision is likely to be sufficient. 88.I am not able to arrive at a conclusion as to whether anything by way of confidential information was disclosed by Mr Shapiro to Mr Miller. If something of substance was mentioned it did not subsequently reach Ms Ward, Ms Wilson or Ms Waterman. The likely prejudice to Glencairn 89.If any confidential part of the Settlement Agreement were to come to the knowledge of Final Touch, I do not doubt that this is likely to prejudice Glencairn’s position in any negotiations with Final Touch. The extent of the prejudice would depend on the nature of the information leaked. 90.Taking this at its highest, if the entire contents of the Settlement Agreement became known to Final Touch, which I think is extremely unlikely, I cannot say how that would impact Glencairn in financial terms. It would depend in part on the scale of Final Touch’s alleged infringement covered by the litigation in this court and I have been told nothing about that. 91.I am therefore left with a clear inference that Glencairn would suffer prejudice if the relevant confidential information were to leak to Final Touch, but little idea of the potential maximum extent of the prejudice. The likely prejudice to Final Touch 92.Final Touch filed no evidence regarding the cost, inconvenience and other potential damage which they would suffer if Virtuoso were restrained from acting for them in this litigation. I must therefore assume that Final Touch could without much difficulty find an alternative firm of equal competence to act for them in this case. 93.However, just as I have drawn inferences in Glencairn’s favour regarding the existence of relevant confidential information in the Settlement Agreement, there are inferences to be drawn in favour of Final Touch. I am entitled to assume that Virtuoso were instructed for good reason and that a good working relationship has developed between Final Touch and the team instructed. If Virtuoso could not act for Final Touch, Final Touch would be put to the cost of instructing new solicitors afresh with whom there may or may not develop a similarly good working relationship.