The evidence
58.There were four witness statements. The first came from Mark E. Miller who is a partner in a US law firm acting for Glencairn in the United States in a lawsuit filed there by Glencairn against Final Touch. He had discussions with Peter T. Shapiro, a US attorney who acts for Final Touch. Mr Miller said: “7. On 13 February 2019, Mr Shapiro telephoned me and referred to the settlement agreement with Dartington. Mr Shapiro said that, as part of Glencairn’s settlement with Dartington, Dartington had obtained payment from Glencairn in exchange for their agreement to redesign one of their glasses. Mr Shapiro indicated that his client might be open to similar settlement terms.” 59.Mr Shapiro responded in a witness statement of his own. He confirmed that there had been a conversation with Mr Miller but said that it had been on 14, not 13 February 2019. He further said: “6. I understand that Mr Miller or Glencairn is asserting that, during my settlement conversation with Mr Miller, I revealed that I was aware of the terms of the settlement between Glencairn and Dartington that had recently been reached in connection with UK legal proceedings. I emphatically deny that I said anything of the sort to Mr Miller. In fact, I told him that I did not know the terms of the settlement, but that there was speculation on the part of the [Final Touch] team about the terms of the settlement, and I stated that, if the speculation was correct, a similar deal might be considered as a basis for productive discussions between [Final Touch] and Glencairn. 7.Mr Miller told me there was no interest on the part of Glencairn in any such discussions, and no further communications about settlement of the United States dispute have taken place. Mr Miller did not tell me anything about what the terms were of the Dartington-Glencairn settlement. 8.I am certain that I did not tell Mr Miller that I knew the terms of the settlement both because I have a clear memory of the conversation and because I also have a clear memory of a prior telephone conversation with Ms Ward, in which she confirmed that she herself was not privy to the terms of the Dartington settlement as those terms had been withheld from her by the solicitors who were acting for Dartington in the UK proceedings. I never learned from Ms Ward, any of her colleagues or my client anything about the actual terms of the Dartington-Glencairn settlement at that time or to the present.” 60.Elizabeth Ward is the partner at Virtuoso acting for Final Touch. She filed a witness statement, as did Christopher Sleep, who is a solicitor at Stobbs and who has conduct of these proceedings on behalf of Glencairn. 61.Ms Ward explained that Virtuoso has two offices, one in Leeds and one in London. Ms Ward, the founder of Virtuoso, heads the Leeds office along with solicitors Kirsten Toft, Gemma Wilson and consultant solicitor Kate Reid, trainee solicitors Lauren Waterman and Razvan Popa, plus members of the accounts and marketing team. The legal team in London consists of solicitors Philip Partington and Lahiru Walawage, and a trainee solicitor Samuel Gilmer. 62.Those in the Virtuoso team which advised Dartington were Mr Partington, Mr Walawage, Mr Popa plus Jordan Davies who was then a trainee solicitor. Ms Davies left Virtuoso on 22 February 2019. 63.The Final Touch team is based in Leeds, consisting of Ms Ward, Ms Waterman and since February 2019 Ms Wilson. Ms Davies was part of the Final Touch team until she left. 64.Mr Ward stated that Virtuoso has always used an online case management system. All files are saved to cloud-based servers and print is used very sparingly. This allows the use of an encryption system to control access to files. On 11 December 2019 Ms Ward was informed by Mr Partington that an information barrier had been erected to protect access to the Dartington files. By virtue of the encryption system used at Virtuoso, only Mr Partington, Mr Walawage and Mr Popa have access to those files. Ms Ward stated that Ms Davies was replaced by Mr Walawage before the settlement discussions between Glencairn and Dartington took place, i.e. those which led to the mediation. 65.Mr Ward’s evidence was that that neither she, Ms Wilson nor Ms Waterman have any knowledge of the terms of the settlement between Glencairn and Dartington. 66.Mr Sleep pointed out that while Ms Ward and her colleagues in Leeds may now have conduct of this litigation on behalf of Final Touch, initially Final Touch were advised primarily by Mr Partington with the help of Mr Popa and Ms Davies. In November 2018 there was correspondence between the solicitors acting on each side which led to an agreement that the dispute between Glencairn and Final Touch should be stayed pending resolution of the Dartington litigation. Mr Partington, Mr Popa and Ms Davies all participated in that correspondence. 67.In or shortly before December 2018 Glencairn and Dartington agreed to conduct a mediation. This marks the time from which confidential information could have been passed to Virtuoso. The mediation took place on 11 December 2018. Before the mediation, in the usual way, the parties exchanged position statements. Mr Sleep said that Glencairn’s position statement set out Glencairn’s settlement strategy. 68.On 11 December 2018 Mr Partington and Mr Walawage attended the mediation on behalf of Dartington.1 The mediation agreement was signed by all those attending and it included an obligation of confidentiality. The mediation shortly afterwards led to a settlement agreement (‘the Settlement Agreement’). 69.Following the Settlement Agreement the present proceedings were revived. The claim form and Particulars of Claim were served on 7 March 2019. The Application Notice seeking an order that Virtuoso be restrained from acting was issued 8 March 2019. 70.Mr Sleep suggested that there was a risk that relevant confidential information may be passed by Virtuoso to Final Touch unless the order sought is made. He supported this suggestion as follows: (a)Virtuoso is a small firm, so there is a correspondingly increased risk that the information barrier will not be effective. (b)Before the information barrier was in place, Mr Popa, Ms Davies and Mr Walawage were based in the Leeds office. All worked on the Dartington litigation and are likely to have discussed it with their colleagues who now advise Final Touch. If any of those colleagues were given information confidential to Glencairn there now is a risk that the information could be passed to Final Touch. (c)Ms Ward is likely to have been privy to this confidential information since she is the principal of the firm. (d)Ms Davies acted for Dartington before the mediation and at least to some extent for Final Touch afterwards until she left in February 2019. It is possible that wittingly or not she shared confidential information with others in the Final Touch team. (e)Those on each side of the information barrier still work in close proximity. One member of the Final Touch team, Mr Popa is based in Leeds. Another, Mr Walawage, appears to spend time in Leeds. Such close proximity with the Final Touch team risks disclosure of confidential information. (f)Ms Ward is the only qualified solicitor on the Final Touch team. She is likely to rely on other qualified solicitors, if only to avoid disproportionate costs, which implies reliance on one or more members of the Dartington team. (g)The only address Virtuoso has given for service is the Leeds office, which is also the only address on their letterhead. Correspondence in the Dartington matter will be sent to Leeds, presenting a further risk.