Nick Pointon successful in landmark Jersey Court of Appeal decision

5th June 2018

Nick Pointon

Nick Pointon successful in landmark Jersey Court of Appeal decision on the standing of lawyers (and other fiduciaries) to sue for breach of confidence

Nick Pointon, member of our commercial team, together with Advocate James Dickinson of Dickinson Gleeson, acted for the successful party, Advocate Philip Sinel, in landmark proceedings before the Jersey Court of Appeal (Bompas JA, McNeill JA and Wynn-Williams JA). The proceedings concern the standing of lawyers to sue for breach of confidence relating to documents and information generated in the privileged context of a lawyer / client relationship.

Advocate Sinel brought proceedings against Mdme. Moira Hennessy (of the Hennessy Cognac family), who received a package of highly confidential documents which had very likely been wrongfully obtained from either Advocate Sinel or his client. Mdme. Hennessy brought a summons seeking to set aside leave to serve those proceedings on her out of the jurisdiction, on the basis that the only party with standing to assert any privilege or confidentiality in the documents or their contents was Advocate Sinel’s client. At first instance the Royal Court of Jersey (Sir William Bailhache, Bailiff) acceded to that summons and set aside leave to serve proceedings out on Mdme. Hennessy, applying a little known decision of Blackburne J in Nationwide Building Society v Various Solicitors (No 2) [1998] All ER (D) 119 in which it was held that lawyers do not have standing to seek injunctive relief restraining infringement of privilege belonging to their clients.

On appeal to the Jersey Court of Appeal the order of the Royal Court was set aside. The Court of Appeal held that there was a good arguable case that Advocate Sinel had standing to sue for breach of confidence notwithstanding Nationwide (No 2). Of that decision Bompas JA said that “it is by no means certain that, were the facts of the Nationwide case again to come before the courts of England and Wales, the arguments or the result would be the same.”

Bompas JA went further and observed that:

“As a matter of first impression, as it seems to us, it would be surprising if someone owing fiduciary duties and possessed of information confidential to the person to whom the duties are owed, should be unable to restrain the use of that information when obtained improperly, quite probably from the fiduciary but possibly in some manner which the fiduciary cannot explain. In the present case the fiduciary is an advocate providing legal services to clients and to that end entrusted with confidential information. But equally the fiduciary might be, say, a trustee entrusted by a beneficiary with confidential information about the beneficiary’s circumstances to enable the trustee to exercise a power or discretion in relation to the beneficiary.”

The case and these remarks in particular are likely to be of considerable significance, both to the substantial fiduciary services industries in Jersey and other offshore jurisdictions, and to those in professional or non-professional fiduciary relationships on the UK mainland. They illustrate how the laws of privacy and confidence continue to develop apace, particularly in light of the transition of the European Convention on Human Rights into domestic law.

View Nick’s profile: Nick Pointon

View judgment: Sinel v Hennessy

If you would like to instruct Nick on a related matter please contact his clerks: [email protected] or 0117 923 4740