Free choice of legal representation has been described as a ‘fundamental right’. Can this compromise efficient litigation? Simon Salzedo reports
“We start with the proposition that it is desirable that a litigant should be free to instruct the lawyer of his choice.”
So begins the discussion section of the judgment of the Court of Appeal (Lord Chief Justice, Lord Phillips of Worth Matravers, Lord Justices Jacob and Lloyd) in British Sky Broadcasting Group and another v Virgin Media Communications and others [2008] .
A more detailed statement of this proposition is the ‘powerful dictum’ (as it was described by the Court of Appeal in Sarwar v Allam [2002]) of Mr Justice Neuberger in Maltez v Lewis [2000]: “It has always been a fundamental right of every citizen to be represented by advocate and/or solicitors of his or her choice. That right is not of course absolute; circumstances may cut it down.
“Thus a person’s chosen lawyer may be ill, engaged elsewhere or conflicted out. A legally-aided party may find that the Legal Aid Board is not prepared to fund his or her particular selection of legal representative. Further, it is clear that no party has the right to expect a hearing date to be fixed on the basis of the availability of his or her choice of advocate or solicitor. Subject to that type of consideration, it seems to me that there is a fundamental right to a choice of legal representative; indeed, I would go so far as to say that it is an important feature of any free society.”
The Divisional Court in R v Legal Aid Board ex parte Duncan and another [2000] has doubted Neuberger’s description of the principle as “fundamental”. This is perhaps reflected in the fact that it has very rarely been the basis of a decision in a civil case. Far more common have been cases in which the circumstances have cut down the principle.
Given the bold starting point of the Court of Appeal’s discussion in BSkyB v Virgin, it is tempting to interpret this judgment as a re-assertion of the fundamental nature of the principle of freedom of choice. However, upon closer examination, pragmatism seems to have been more important than principle in motivating the Court’s decision.
Virgin brought a claim in the Chancery Division that BSkyB was abusing a dominant position in breach of European and UK competition law. In separate proceedings, Virgin had applied for judicial review to the Competition Appeal Tribunal (CAT) of a recommendation by the Competition Commission that BSkyB was not required to divest itself of the entirety of its shareholding in ITV. It had also made complaints to Ofcom about the pay television industry (including BSkyB), which were being investigated.
The disclosure required by the Chancery Division proceedings was highly confidential, and it was restricted to a ‘confidentiality club’ of lawyers responsible for the case. BSkyB’s application raised a further concern: some of the lawyers within the confidentiality club for Virgin were also acting for Virgin in the CAT and Ofcom proceedings. BSkyB said the Virgin lawyers acting in the CAT and Ofcom proceedings would not be able to put out of their mind what they learnt from BSkyB’s disclosure given in the Chancery Division. They would therefore use that information for Virgin in those other proceedings that would be in breach of the collateral undertaking in the Civil Procedure Rules (CPR) 31.22 not to use disclosed documents outside of the proceedings in which disclosure was given.
BSkyB’s application to exclude certain Virgin lawyers from the confidentiality club was rejected at first instance by Mr Justice Lewison. BSkyB relied by analogy upon the principle established by the House of Lords in Bolkiah v KPMG [1999] that a professional in possession of confidential information belonging to a former client could not act against that former client if there was a real risk of disclosure to the adverse party. Lewison held that there was no real risk of disclosure in relation to the CAT proceedings. Regarding Ofcom he found that BSkyB was adequately protected by the collateral undertaking, adding that it would be disproportionate to require Virgin to change its legal team at a late stage of the Chancery Division or CAT proceedings.
The Court of Appeal dismissed BSkyB’s appeal from Lewison’s ruling. The Court rejected BSkyB’s reliance on Bolkiah on the basis that the collateral undertaking under CPR 31.22 could be released by the Court as a matter of discretion — unlike the duty of confidentiality to a former client considered in Bolkiah. It is implicit in the Court’s judgment that a lawyer does not misuse information received on disclosure.
The Court of Appeal agreed with Lewison that there was no real risk that the disclosed information would be improperly used in the CAT proceedings. They also held that the same finding should be made in relation to the Ofcom review. This means that, on the facts, the same conclusion would have been reached even if the Bolkiah test had been applied.
The Court also said it was in the public interest that the disclosed documents should be considered in the other proceedings, so far as they were material to those proceedings. This might be used in later cases as a potential justification for the collateral undertaking to be released.
The Court finally accepted that, in rare cases, where solicitors acting for A had received disclosure from B they might be precluded from acting for C against B in other proceedings (e.g. the case of multiple claimants with similar claims against the same defendant). However, the Court found it “hard to conceive of circumstances where disclosure in one set of proceedings would preclude lawyers from acting in other proceedings between the same parties”.
These general conclusions suggest that the Court’s real concern was not any fundamental principle of free choice, but rather the practical advantages of one party retaining the same lawyer in related proceedings. In commercial litigation, there is generally a wide choice of competent solicitors and counsel suitable for any given case. The basic right to choose one’s lawyer is not threatened if, say, firm A is conflicted, firm B wishes to charge too much and firm C is inhibited by information obtained from the adverse party in other proceedings, as there are still many other firms available. However, efficient litigation is compromised if a party has to change lawyers mid-stream or use multiple firms on a single issue.
Thus it would be a mistake to see BSkyB v Virgin as being based upon the fundamental nature of the principle of free choice of legal representation. It is better viewed as providing pragmatic guidance as to where the discretionary line is to be drawn in these, rather unusual, circumstances.
Simon Salzedo is a barrister in commercial practice at Brick Court Chambers.
