A Winter´s Tale - Acting Against A Former Client?

Where a solicitor seeks to act against an existing client, the primary consideration is whether the retainer gives rise to an actual or potential conflict of interest. However, when it comes to past clients, the issue is no longer one of conflict but one of preservation of the confidentiality of the former client's information.

Former clients

The current test for when a party may restrain his former solicitor from acting for another client was established in Bolkiah v KPMG (1999). The House of Lords held that a party seeking to enjoin the solicitor (or in that case, accountant providing litigation support services) must show (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the matter in which the interest of the other client is or may be adverse to his own. The burden then shifts to the solicitor, who must satisfy the court