19 It seems that the plaintiff's own valuations indicate that the value of the village has increased substantially since the share sale was settled, and that the value is well above the price paid. Elusive has not yet filed a defence, but the plaintiff anticipates that it will rely on these circumstances and that that matter will become an issue in the proceeding. It seems to me that the plaintiff's anticipation in this respect is likely to be realised. The plaintiff does not contend that the valuations it has obtained are themselves confidential and indeed Mr Reeve has exhibited them to his affidavit.
20 Pinnacle's material does not establish the existence of any specific confidential information which has been disclosed to Ms Low with sufficient precision to warrant intervention on that ground. Mr Reeve's affidavit, in the passages relied upon, merely refers to the subject matter, and describes, or purports to describe, the information in global terms. This is not sufficient(Sent)[8].
21 That is not the end of the matter. Counsel for Pinnacle also relied upon the observations of Gillard J in Yunghanns v Elfic Ltd[9] quoted with approval by Nettle J in Sent[10], to the effect that when acting for a party a solicitor, in addition to becoming aware of specific confidential information, may also become privy to information which is less easy to define, but which is nevertheless confidential and entitled to be protected. This is information about the nature and character of the client, the client's strengths and weaknesses, the client's attitude to litigation and tactics, and other such information. Gillard J described these as "getting to know you factors".
22 A problem of the protection of information of this "getting to know you" character does potentially exist here. By its very nature information of this kind is difficult, if not impossible, to categorise or define.
23 The fact that Russell Kennedy is now acting for Elusive against Pinnacle, and that it gained whatever "getting to know you" knowledge it has which is relevant to this application whilst acting for TV Mews, not for Pinnacle, does not appear to me to be significant in this context. The material establishes that Mr Reeve was the person with whom Ms Low dealt when acting for TV Mews, and Mr Reeve is clearly the principal protagonist on the Pinnacle side of the share sale dispute.
24 On the other hand, the significance of this factor is lessened in this case by two matters.
25 First and foremost, such knowledge as Ms Low has gained of Mr Reeve whilst acting for TV Mews has been gained in circumstances where Mr Reeve was aware that Russell Kennedy was continuing to act on behalf of Elusive in matters concerning the share sale transaction. Insofar as he has revealed matters concerning himself and his approach to Ms Low when acting as an officer of TV Mews, he has done so knowing that her partners were continuing to act on behalf of Elusive in relation to dealing with him when he was acting as an officer of Pinnacle.
26 Secondly, the transactions in which Ms Low was involved were of a different character to the share sale transaction and to the litigation in which Elusive and Pinnacle are now engaged. Mr Harris, in Elusive's responding affidavit, described the matters in which Russell Kennedy acted for TV Mews after the share sale settlement as being "routine matters." With one exception, on the material before me that seems an apt general description. The share sale transaction and the litigation are not matters of that kind. Knowledge of Mr Reeve in one context would not necessarily translate to the other.
27 The one exception concerns the issue of calculation of the deferred management fees. This issue began as a routine matter, but seems to me to have become something more. Ms Low dealt with Mr Reeve on the meaning of the relevant provision concerning calculation of deferred management fees in the agreements between TV Mews and residents, and then drafted, or supervised the drafting, of a proposed amendment. One of the allegations in the proceeding is that Elusive misled Pinnacle by not informing it that it had waived TV Mews' contractual entitlement to deferred management fees. The material before me does not establish that specific confidential information on this issue has been disclosed to Ms Low, but the existence of this issue leaves me with a lingering uncertainty that some matter could arise in the case where Ms Low's prior involvement will create a real concern.
28 With some hesitation, I conclude that I should not intervene on the basis of this aspect of the risk of disclosure or misuse of confidential information at this stage. When the case is further advanced it may be that that matter will need to be reconsidered.
Duty of loyalty and public policy
29 Counsel for Pinnacle frankly conceded that the circumstances here could not be accurately described in the terms Brooking J employed in Spincode where a solicitor "changes sides" and decides to "take up the cudgels against a former client"[11]. But he submitted that what was important here was that Russell Kennedy had sought out Mr Reeve in order to obtain the work of TV Mews. He submitted that if a fair minded reasonably informed member of the public was told that Russell Kennedy had sought out Mr Reeve and as a consequence had dealt with him as an officer of TV Mews on issues which are now relevant in a proceeding in which they intend to continue to act for Elusive, that fair minded member of the public would say that that should not occur.
30 In response, counsel for Elusive relied upon a number of circumstances.
31 One matter raised in submissions and in Mr Harris's resonding affidavit concerned the merits of Pinnacle's claims in the proceeding. I am in no position to assess the merits.
● Russell Kennedy had never acted for Pinnacle.