RBC v Appleby

JurisdictionJersey
CourtRoyal Court
JudgeThe Deputy Bailiff
Judgment Date14 November 2007
Neutral Citation[2007] JRC 211
Date14 November 2007

[2007] JRC 211

ROYAL COURT

(Samedi Division)

Before:

M. C. St. J. Birt, Esq., Deputy Bailiff, and Jurats Allo and Le Cornu.

Between
1. RBC Trustees (CI) Limited (formerly Abacus (CI) Limited
2. Michael David de Figueiredo
Representors
and
John Bisson
Graham Boxall
Michael O'Connell
Mark Lewis
Andrew Pim
Fraser Robertson
Timothy Hart
Gillian Robinson
David Benest
Farah Ballands
Wendy Benjamin
Andrew Weaver (exercising the profession of Advocates and Solicitors under the name and style of Appleby).
Respondents

Advocate T. J. Le Cocq for the Representors.

Advocate M. St J. O'Connell for the Respondents.

Authorities

Abacus (CI) and Others v Bisson and Others [2007] JRC 150.

Les Pas Holdings Limited v Receiver General [1995] JLR 163.

Jersey Evening Post Limited v Al Thani [2002] JLR 542.

Companies (Jersey) Law 1991.

The Deputy Bailiff
1

On 6 th July 2007 this Court ordered that the respondents ("Appleby") should cease representing Gamlestaden Fastigheter AB ("Gamlestaden") in certain proceedings ("the Baltic proceedings") currently before the Royal Court. The Court subsequently gave reasons for its decision in a judgment on 27 th July [2007] JRC 150 ("the July judgment").

2

Appleby now asks the Court to re-visit the matter in the light of an alleged change in circumstances since the Court's original decision and to order that Appleby be permitted to continue to represent Gamlestaden in the Baltic proceedings. The application raises a preliminary question of whether the Court is functus officio. The hearing was in private and submissions were made concerning various legal firms who were not present. In the circumstances we propose only to identify those firms which have already acted for the parties in the Baltic proceedings.

3

Abacus (CI) Limited has now changed its name to RBC Trustees (CI) Limited but we propose for convenience to continue to refer to it as 'Abacus'. We shall also for the most part not distinguish between Abacus and the second representor, Mr de Figueiredo, and accordingly references to the submissions of Abacus are taken to include those of Mr de Figueiredo.

Background
4

The background to this matter is set out fully in the July judgment to which reference should be made for a detailed understanding of the matter. Suffice it to say that Gamlestaden has brought proceedings against Mr de Figueiredo and other employees of Abacus in respect of their actions as directors of a Jersey company, Baltic Partners Limited, of which Gamlestaden was a shareholder. It is alleged that, as a result of the directors' breach of duty Gamlestaden has lost not less than DM98m. The proceedings have a protracted history and this is described in paragraphs 2-4 of the July judgment.

5

Until September 2004 Gamlestaden was represented by Crill Canavan. However it then sought to instruct Appleby instead. Abacus immediately objected. By agreement Appleby acted for Gamlestaden in respect of various purely legal points argued before the Court of Appeal and then the Privy Council but, following the decision of the Privy Council that the Baltic proceedings should be permitted to continue, Abacus renewed its objection to Appleby acting for Gamlestaden.

6

The ground of objection was that Appleby had previously acted for Abacus in a complex matter related to the Y Trusts. Mr de Figueiredo had been the principal person at Abacus with responsibility for the Y matters and he had dealt with Appleby. It was said that, as a result of acting for Abacus on the Y matters, Appleby was in possession of confidential information acquired from Abacus which might be relevant to the Baltic proceedings, where the interests of Appleby's new client Gamlestaden were adverse to those of Abacus.

7

In the July judgment the Court referred to the relevant authorities, described the evidence in the case and the parties respective submissions and then stated its conclusion in paragraphs 43 and 44, which we think convenient to set out in full:-

"43 We turn therefore to the central issue in this case. Appleby accepts that it is in possession of confidential information received from Abacus while acting in respect of the Y matters. Is there a real risk that such information (or some of it) is relevant to the Baltic litigation?

44 We have not found this to be an easy decision. The arguments are reasonably closely matched. However, on balance, we have concluded that there is a real risk of some of the confidential information imparted to Appleby during the Y matter being relevant to the Baltic litigation. Our reasons can be summarised as follows:-

(i) We have no reason to doubt Mr de Figueiredo's evidence on affidavit. We accept therefore that he discussed the matters which he summarises in his affidavits with one or more members of Appleby. The fact that the partners of Appleby do not recall it is not surprising. They cannot be expected to recall details of conversations which were not intended to be and almost certainly were not in fact significant in the context of the matter upon which they had to advise .

(ii) It is true that the evidence of Mr de Figueiredo is very general. He does not give detailed specific examples of confidential information which he disclosed and which may be relevant to the Baltic litigation. However we do not consider that to be surprising. The relationship with Appleby in relation to the Y matter was a two-year relationship with over forty meetings and many other communications. It was an intense and prolonged relationship. We have no difficulty in inferring that, in the context of such a relationship, there would have been wide-ranging and informal conversations amongst fellow professionals concerning matters such as how Mr de Figueiredo viewed his role as a director, how he performed it etc .

(iii) Mr de Figueiredo gives certain categories of information which he knows that he discussed. These are summarised at paragraph 10 above. We will refer to each of them in turn. We do not consider that, in the context of this case, discussions of the ownership structure of Abacus or the approach to business and personal characteristics of some of the key senior management at Abacus (unless they were Mr Bailey or Mr Boleat, which is not asserted) have any possible relevance to the Baltic litigation. We do however think that Abacus' insurance cover could be relevant. For example, if Mr de Figueiredo had disclosed the level of the professional indemnity cover or the level of any excess, this might well be highly relevant for Gamlestaden when considering its tactics when claiming a sum as high as DM98m. We accept that Mr de Figueiredo does not assert that he discussed either the level of any cover or the excess but we agree that there is a real risk that discussion about Abacus' insurance position may have disclosed information which would be helpful to Gamlestaden .

(iv) As to the question of Abacus' approach to litigation generally and to settlement thereof, we think that there is a real risk of this too being relevant. We have already discussed the extreme example outlined at para 42 above but we can envisage many less extreme examples about Abacus' general approach to litigation and to settlement of claims which would be of assistance to an adverse party such as Gamlestaden and we consider therefore that there is a real risk of such information being relevant .

(v) As to the way in which Abacus manages its client companies, its communication with those companies, its approach to risk in respect of those companies and how the directors run those companies (including most importantly Mr de Figueiredo's approach to his responsibilities as a director of a client company) we think there is a real risk of such information being relevant. We accept that the factual situations are quite different. In the Baltic litigation certain specific actions taken by Mr de Figueiredo as a director of Baltic are criticised. He did not of course take exactly similar actions as a director of any of the Y Companies. However general background information about how Mr de Figueiredo performs as a director and his approach to such responsibilities (particularly where his actions as a director of one of the Y Companies had been the subject of implied or possible criticism) could be very relevant. Such information would be helpful, for example, to Mr O'Connell when deciding how to cross-examine Mr de Figueiredo, who is the key witness in the Baltic litigation .

(vi) At paragraph 21 of his second affidavit, Mr de Figueiredo states that he believes he would have discussed the Baltic litigation itself with members of Appleby. We do not think that that is sufficient. Unlike his assertion on the other matters referred to above ("I know I have talked to Bailhache Labesse about the following .....") he merely conjectures that he might have spoken about such matters. In our judgment this has not crossed the necessary threshold so as to satisfy us that there is a real risk of such information being in the hands of Appleby or being used against Abacus .

(vii) We accept that a client alleging the possession of relevant confidential information by a former solicitor should normally have to give some particularity (see the judgment of Lightman, J quoted at para 28 above). But the courts may sometimes infer the existence of such information. This appears not only from the same passage in the judgment of Lightman, J but also the decision of Timothy Walker, J in Re a firm of solicitors referred to at para 30 above. If Appleby's instructions in relation to the Y matter had been of the more conventional variety and had therefore lasted a comparatively short time with a moderate level of fees being incurred, we would not have found for Abacus in the absence of something more specific and concrete from Mr de Figueiredo. But this is a matter where some £800,000 of time was incurred over a...

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