Background
C brought proceedings under the Trusts of Land and Appointment of Trustees Act 1996 concerning a Tunbridge Wells property held by C and her former husband, A, as tenants in common in equal shares. C sought, among other relief, a declaration as to the parties’ equal beneficial ownership and an order for sale. A lived at the property with their two children. Separate preliminary issues concerning the effect and jurisdictional validity of Italian court orders were reserved for a later hearing.
A applied to prevent C’s solicitors, Birketts LLP, from continuing to act. A had previously instructed Stowe Family Law, where Sebastian Burrows—who later joined Birketts as a partner—had held overall supervisory responsibility for A’s matter and conducted an initial telephone consultation with him. A argued that Burrows’s confidential knowledge was automatically imputed to Birketts and created an incurable conflict under paragraph 6.5 of the SRA Code of Conduct.
Burrows testified that he had no recollection of A or the matter, retained no related documents, had never accessed Birketts’ file for C, and had no contact with the property-disputes team conducting the litigation. He worked in Birketts’ family team in Cambridge, while C’s case was handled by a different department in Bristol.
The Court’s Holding
Deputy High Court Judge Nageena Khalique KC dismissed A’s application and allowed Birketts to remain on the record for C. The court held that neither Prince Jefri Bolkiah v KPMG nor Koch Shipping Inc v Richards Butler establishes automatic, irrebuttable firm-wide imputation whenever a lawyer changes firms. A former client must first establish that relevant confidential information is presently possessed; only then does the burden shift to the solicitors to demonstrate that there is no real, as opposed to fanciful or theoretical, risk of disclosure.
The judge accepted Burrows’s evidence and found no evidential basis for concluding that he retained relevant confidential information. His former supervisory role, without more, did not establish present knowledge, and A identified no communication, file access, document, meeting, or other evidence showing that information had passed to C’s legal team.
Even assuming that some relevant recollection survived, the court found no real risk of disclosure. Burrows’s separation from the litigation team by department, office, systems access, and lack of involvement constituted effective information barriers. Undertakings offered by Burrows and Birketts supplied additional protection, although the court held that they were not required on its primary findings.
Key Takeaways
- A lawyer’s move to an opposing firm does not automatically disqualify the entire firm; English law does not recognize an irrebuttable rule of firm-wide imputed knowledge.
- The applicant must first show that the lawyer or firm possesses confidential information that is or may be relevant to the current matter.
- Physical, departmental, and technological separation can eliminate any real risk of disclosure, with appropriate undertakings providing further protection.
Why It Matters
The decision clarifies the evidence required to disqualify solicitors after a lateral hire. A prior professional relationship or supervisory title is not enough by itself: the court will examine what relevant confidential information is actually retained and whether there is a real risk that it could reach the adverse party’s legal team.
The ruling also confirms that effective information barriers remain a permissible safeguard. Disqualification applications are intensely fact-sensitive and cannot rest solely on presumed disclosure or a broad theory of automatic imputation.