Mex Group Worldwide Limited v Adam Duthie & Anor

This case is about use of confidential information by a solicitor, the first defendant (Mr Duthie) who is sued by his former client, the claimant (Mex) for breaches of his duties of confidence and wrongful retention of client documents. The second defendant (DCL) is a service company owned and controlled by Mr Duthie, through which he provided in house counsel services to Mex and its subsidiaries known as the MultiBank Group. Mex applies to strike out part or all of the defence and counterclaim and/or for summary judgment.

The court sat in private for parts of the hearing. I was satisfied that I must do so at those times because the hearing involved Mex’s confidential information and publicity would damage that confidentiality (CPR, rule 39.2(3)(c)). At other times we were able to sit in public by being circumspect about what we said in open court. This judgment is public but has been edited so that parts of it are available to the parties only in a confidential annex.

In this publicly available judgment, I will cover the parts of the evidence suitable for publication and the corresponding publishable parts of my reasoning and conclusions, as well as the submissions of the parties informing them. The material not suitable for publication is dealt with in the confidential annex, as indicated by a cross-reference in the form “[CA (1)]”, “[CA (2)]”, and so forth.

One of the bundles was a “confidential bundle” containing most but not necessarily all the documents confidential to Mex. The court’s order will include a direction under CPR rule 5.4C, limiting non-party access to, at least, the confidential bundle and requiring that any non-party request to see documents on the court file should be referred to the court and the parties should be placed on notice of it before any documents are disclosed to a non-party.

The background is complicated and includes serial litigation across several jurisdictions. I do not set it all out but will need to refer to some of it later. More detail can be found in publicly available judgments: see in particular:

Males LJ characterised Mex thus in his judgment at [8]:

“ … Mex … is a Hong Kong-based company. It is the holding company of a group of companies trading under the name of MultiBank. Its sole shareholder is Mr Naser Taher. The MultiBank companies provide trading platforms for investors dealing in derivatives and are authorised to provide financial services in 14 jurisdictions not including the United Kingdom.”

Until recently, Mex had obtained worldwide freezing orders against certain parties. These were then discharged for (inter alia) failure to make full and frank disclosure. Mex also recently discontinued certain Scottish proceedings in which damages of about £85 million were claimed against various parties including the fifth defender Melville Consulting Partners Ltd (Melville) whose directors include Mr Duthie. Consequential issues arising out of those two sets of proceedings were still being considered at the time of the hearing before me.

Mex primarily seeks permanent injunctive relief to restrain breaches of confidence and to restrain the defendants from acting against its interests. It also seeks the return or destruction of retained confidential documents. Mex submits that there are no arguable defences to its claims and no compelling reason why there should be a trial. The defendants submit that it has several defences that are arguable and fit for trial and that there are compelling reasons why a trial is needed.

The defendants say they acted lawfully, in the public interest, in response to Mex’s own conduct. [CA (1)].

The defendants rely on the “iniquity exception” defence: that the alleged breaches of confidence are not breaches because “the matters / information involved had been brought into existence as part of, or in furtherance of, acts perpetrated by Mex and/or its sole owner and controlling mind, Mr Taher … . (Footnote: ¹)” They say, next, that Mex waived confidentiality by putting in the public domain the matters relied on in proceedings in Scotland, England and the British Virgin Islands (BVI).

Other defences relied on are, first, a denial that Mr Duthie disclosed any confidential information in the proceedings in Scotland; that he came under a duty and a legal obligation to disclose such matters as he did disclose, by virtue of his statutory and regulatory obligations; and that any breach of confidence was de miminis as it was made in the English freezing order proceedings and the proceedings in Scotland, both of which are or soon will be finished.

The applicable principles are familiar and I will not labour them unnecessarily. The rules in play are CPR rule 3.4 and rule 24. The court can strike out a statement of case or part of it if it appears that the statement of case or part discloses no reasonable grounds for bringing or defending the claim or is abusive (rule 3.4(2)(a) and (b)). The correct approach is that of Lewison J (as he then was) in Easyair Ltd v. Opal Telecom [2009] EWHC 339 (Ch) at [15].

There must be grounds for bringing or defending a claim, with more than fanciful prospects of success. I must not conduct a mini-trial. I can look at uncontradicted accounts and documents. Generally, I take the facts and the law at their highest in favour of the party proceeded against, except for any facts that are implausible even without further investigation. There must be a critical examination of the issues and documents, but the court should not be drawn into determining the weight to be given to particular evidence that is not agreed.

If a decisive short point of law or construction is suitable for summary determination, I should grasp the nettle and decide it. If an issue arises in an area of law that is developing, it may be unsuitable for summary determination. If disclosure or testimony is needed to decide a point, there should be a trial on that point. I should take into account not just current evidence but also evidence that can reasonably be expected to be available at trial.

Where fraud is alleged, particulars of the facts relied on must be clearly pleaded: Portland Stone Firms Ltd v Barclays Bank Plc [2018] EWHC 2341 (QB) per Stuart-Smith J (as he then was) at [25]-[31]; see also CPR PD16, paragraph 8.2(a). If they are not, the allegation of fraud may be struck out: Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1 per Lord Hope at [51]-[56]. The court will not allow proof of an alleged fraud that is not properly pleaded: ibid. per Lord Millett at [186].

Mex is the parent company of the MultiBank Group, an international group of companies and a major provider of brokerage services for foreign exchange and contracts for difference transactions. Mr Duthie is a solicitor of some 30 years’ standing and a former partner at Withers LLP. He began providing services to the MultiBank Group as an individual, in 2019.

The defendants assert in this application that (as it is put in their skeleton argument): [CA (2)].

Mex strongly denies this and says the allegation is not properly pleaded and not worthy of belief and that it can be dismissed without the need for a trial. Mex asserts that between March 2017 and December 2020, the MultiBank Group was in a joint venture with a company called Von der Heydt & Co AG (VDH AG) whereby MultiBank agreed to provide support to certain notes (Mex notes) issued in Luxembourg by Mex Securities Sarl (Mex Securities), described by Mex’s solicitor as “a Luxembourg securitisation vehicle”.

Mr Mark Hastings, Mex’s solicitor, says the relevant Mex notes had suffered trading losses due to the trading strategy of VDH AG and its chief executive officer, Mr Michael Gollits. In return for MultiBank’s support, Mex says that through Mr Gollits, VDH AG agreed not to redeem the Mex notes for what Mr Hastings calls “a period of time”. Mex needed this time to earn fees on commissions through the trading of the notes. Mr Hastings mentions two documents dated in 2019 and 2020 as evidencing the joint venture.

Mex says that unbeknown to Mr Taher and MultiBank, Mr Gollits had earlier established a Luxembourg company called CSM Securities Sarl (CSM), with two others, Mr Colm Smith and Mr Stewart Ford, the latter being a friend and longstanding associate of Mr Duthie; and the initials “CSM” being the first letters of the first names of the three. CSM is said to have been a competitor of Mex Securities. Mex says CSM planned to transfer funds from the joint venture to CSM and to injure the MultiBank Group’s business.

On 1 May 2020, Mex and DCL entered into a written agreement (the services agreement) for provision by DCL of Mr Duthie’s services as General Counsel to the MultiBank Group. Clause 7 was a fairly standard confidentiality and client property clause. “Confidential Information” and “Client Property” were defined in the usual broad terms in clause 1.1. By clauses 7.2 and 7.3:

“7.2

The Consultant Company [DCL] shall not, and shall procure that the Individual [Mr Duthie] shall not (except in the proper course of its or his duties), either during the Engagement or at any time after the Termination Date, use or disclose to any third party (and shall use its best endeavours to prevent the publication and disclosure of) any Confidential Information. This restriction does not apply to:

(a)

any use or disclosure authorised by the Client [Mex] or required by law; or

(b)

any information which is already in, or comes into, the public domain otherwise than through the Consultant Company's or the Individual's unauthorised disclosure.

7.3

At any stage during the Engagement, the Consultant Company will promptly on request return to the Client all and any Client Property in its or the Individual's possession.”

Clause 12 required DCL on termination to deliver up “Client Property” and “Confidential Information”, delete it as necessary and procure that Mr Duthie do likewise; and to provide a signed statement from DCL and Mr Duthie that they had duly complied with their obligations under the clause, together with such evidence of compliance as Mex may reasonably request.

Mex’s case is that VDH AG and other companies in its group came under regulatory scrutiny in Luxembourg; and that on 2 December 2020, Mr Gollits falsely represented to Mr Taher of Mex that it had become necessary for VDH AG to withdraw funds from the Mex notes because of a supposed new regulation making illegal (in Luxembourg) the investment of the Mex notes in precious metals or precious metals derivatives. Mex says Mr Gollits requested immediate redemption of the sums VDG AG had invested in the Mex notes.

Mex’s case is that on 7 December 2020, Mr Colm Smith, who was the de facto manager of Mex Securities, flew to Dubai for negotiations with Mr Taher. The negotiations produced a settlement agreement whereby Mex Securities agreed to (and did) pay about €36 million to Mex in return for an assignment of Mex’s claims against VDH AG; the assignee being a wholly owned United Arab Emirates subsidiary of Mex called Mex Clearing Limited (Mex Clearing).

On 10 December 2020, Mex Clearing issued a claim in the Eastern Caribbean Supreme Court (Virgin Islands) (the BVI proceedings) against Mex Securities, seeking the return of alleged loans. Control of Mex Securities is disputed by the defendants. Mex says (see adjusted condescendence (AC) in Mex Group Worldwide Ltd v. Ford et al [2025] CSOH 39 (the Scottish proceedings), at [15]) that Mr Duthie persuaded Mr Taher to bring the BVI claim.

[CA (3)]. The basis of the BVI claim was that (see AC at [15]): “the funds advanced by the pursuer [Mex Clearing] over the whole course of dealing were to be treated as loan finance to the eleventh defender [Mex Securities], which was by that time the party holding the proprietorial interest in the assets in which the note investment had been invested.”

According to the AC in the Scottish proceedings, at [17]:

“On 10 December 2020, Mex Clearing raised a claim against the eleventh defender [Mex Securities] and MBFX [Multibank FX International Corporation, a BVI subsidiary of Mex] in the British Virgin Islands seeking repayment of the sum of €36,385,509.52 (‘Mex Clearing BVI Claim’). …. Whilst the dispute in the BVI proceedings was in substance between Mex Clearing and the eleventh defender, MBFX was joined as a second defendant as it held the funds in respect of which Mex Clearing sought payment.”

What happened in December 2020 is further described in the recent decision on expenses of Lord Sandison in the Scottish proceedings at [11]-[12]:

“[11] … An agreement was reached that Mex Securities would enter into a settlement agreement and thereafter a consent order in the BVI court process acceding to the claim to the extent of most of the relevant sums, that Mex would assign its claims against VDH AG to Mex Securities and would thereafter assist it in funding the pursuit of those claims against VDH AG; and that, in the event of successful pursuit of the assigned claim against VDH AG, the ultimate proceeds after reimbursement of legal costs would be used first to restore the note holders to the position they should have been in but for VDH AG’s actions, and thereafter would be divided equally between Mex and Mex Securities. The settlement was presented to the court and formalised in a consent order and schedule thereto granted by Wallbank J sitting in the BVI High Court on 14 December 2020. On 18 December 2020 the consent order was partially implemented. Mex Clearing received funds of €36,385,509.52 from MBFX in implement of an instruction from Mex Securities, in accordance with the consent order.

[12] At this point the plot thickens. Almost immediately after settlement terms were agreed and the consent order was finalised, Mex Securities purported to renege upon it. Mr Smith left Dubai to return to Luxembourg on 18 December 2020. On 22 December 2020, agents purporting to act on behalf of Mex Securities wrote to Mex’s solicitors in the BVI claim and separately to MBFX, suggesting that only Mr Volotovskiy was a director of Mex Securities, which had no knowledge of the consent order and was seeking to challenge any implement of it. Mex claims that Mex Securities had been incorporated in Luxembourg in 2018 as a securitisation vehicle for the purpose of a proposed venture which had been discussed between Mex and VDH AG but which did not proceed. Mex allowed it to use the “Mex” style, but it was not integrated into its group and was not controlled by Mex. It was used as the vehicle for a note swap transaction which led to the operation of the indices in question at the suggestion of Mr Gollits, who appointed Mr Smith and Mr Volotovskiy to manage it.”

It is not disputed that Mex Securities, in reneging on Wallbank J’s consent order (the Tomlin order), alleged that the settlement was a “sham” (see e.g. AC at [38]). Mex Securities brought a claim in Luxembourg on or about 2 March 2021 (ibid., at [31]) alleging that Mr Taher and Mr Duthie had pressured Mr Smith into agreeing to the settlement embodied in the Tomlin order (holding Mr Smith in a “golden prison” in Dubai) and that Mr Smith was not authorised by Mex Securities to agree to the settlement.

In April 2021, in the BVI proceedings that had led to the Tomlin order, Mex Clearing obtained an anti-suit injunction against Mex Securities continuing the Luxembourg claim, which did not then progress further. Mex Clearing also applied for an anti-suit injunction in England, which Bryan J granted in the High Court in London on 16 April 2021. Bryan J also granted other relief to protect Mex against what he called scurrilous and demonstrably false allegations made in the Luxembourg proceedings.

Then on 23 April 2021 (see AC at [33]), a company associated with VDH AG called Von de Heydt Invest SA (tenth defender in the Scottish proceedings) (VDHI), applied ex parte as an additional claimant in the BVI proceedings against Mex Clearing and MBFX for a worldwide freezing order (the BVI WFO) and an order staying the Tomlin order (and for certain disclosure). Jack J granted the BVI WFO that day and it was upheld on appeal. Its basis was that Mr Smith and Mex had perpetrated a fraud against VDH AG, VDHI and their clients. The allegation was that the BVI claim and settlement were a fraudulent ruse benefiting Mr Taher at the expense of investors in the Mex notes.

According to the AC in the Scottish proceedings at [34], from April to October 2021, Mex Clearing and MBFX applied unsuccessfully in the BVI proceedings to have the BVI WFO set aside. On 4 October 2021, Jack J gave a judgment refusing to discharge it. In the further course of the BVI proceedings, Jack J was recused from the case in an appellate decision made on 29 April 2022. The procedural history of the BVI proceedings has been complex and there has been no trial or definitive conclusion to them.

It will be recalled that Mr Duthie was General Counsel of the MultiBank Group during these extraordinary events, pursuant to the services agreement. There is, to put it mildly, a sharp dispute between the parties in this case about what his role was in the above events; what advice he gave, what his role was in the litigation and whose side he was really on. There were and are, to put it neutrally, strong disagreements between Mr Duthie and Mr Taher.

On 1 May 2022, Mex wrote to the defendants giving formal notice of termination of the services agreement with immediate effect and asserting breaches of various of its provisions. Indignant protests followed from Mr Duthie in emails. There was a dispute over money Mr Duthie considered owing to him or DCL. The tone of his emails was bitter and angry, though they were headed “without prejudice” and said to be subject to legal privilege.

Mr Taher and Mr Duthie then patched up their differences and entered into a further agreement dated 26 July 2022 (the addendum agreement) with additional parties including Mr Taher personally. The addendum agreement included in the recitals that Mex and Mr Taher [CA (4)] considered that they had causes of action and rights to substantial damages against Mr Duthie and DCL.

The addendum agreement stated that Mr Duthie would provide limited legal services as a consultant, mainly for ongoing litigation involving MultiBank. It contained the same definitions of “Confidential Information” and “Client Property”. Clause 3(a) recognised that the services agreement had been validly terminated, but clause 3(b) provided that clauses 7 and 12 remained in full force and effect, surviving the termination. By clause 6, the addendum agreement would terminate on 30 July 2023, unless extended. No extension was agreed.

The defendants accept that Mr Duthie received substantial amounts of Mex’s confidential information; that he and DCL owed and still owe the contractual duties in clause 7 of the services agreement and equivalent or co-terminous duties in equity and in tort law; that he “blind copied” numerous work emails to a private email address while working as General Council of MultiBank; and that he did not return or delete all confidential information or other client property after finally parting company with Mex.

On 18 October 2023, Mex commenced the Scottish proceedings by summons in the Court of Session. I have already quoted certain passages from the AC as they help to understand the unfolding chronological narrative. The relief sought in the “Conclusions” was:

“For declarator that the defenders have engaged in an unlawful means conspiracy directed inter alia at harming and injuring the interests of the pursuer by: (a) by causing the eleventh defender [Mex Securities] to seek to renege on the agreement recorded in the schedule to the Consent Order granted by the High Court of Justice of the British Virgin Islands dated 14 December 2020 (as defined in the Condescendence hereto) which agreement was a lawful, valid and binding compromise entered into by the parties to it, and for that purpose (b) causing a bribe or inducement to be paid to the third defender [Mr Smith] by the transfer of investment funds from the ninth and tenth defenders [VDH AG and VDHI] in the sum of at least $7m to be paid to the eighth defender [CSM] (and thus indirectly to the benefit of the third defender [Mr Smith]) to induce him to cause the eleventh defender [Mex Securities] to seek to renege; (c) attempting to insulate the ninth and tenth defenders [VDH AG and VDHI] from exposure to their own customers and regulatory difficulty arising as a consequence of their own actions, by seeking to create the false impression that those difficulties were caused by the pursuer; (d) seeking to advance a dishonest account that the third defender [Mr Smith] lacked legal authority to bind the eleventh defender [Mex Securities] to the terms of the settlement; (e) seeking to advance a dishonest account that the third defender's [Mr Smith’s] giving of consent to that settlement on behalf of the eleventh defender [Mex Securities] was vitiated by improper pressure applied to him; (f) harming the pursuer's interests and reputation by making, and seeking to publicise, false claims against the pursuer and related companies; (g) furthering the carrying on of substantial volumes of investment business between the defenders; and (h) concealing the first defender's [Mr Ford’s] interest in and involvement with that business in light of the prohibition order made against him by the Financial Conduct Authority.”

The Conclusions then added a claim for payment by the defenders to the pursuer, Mex, jointly and severally or severally, of £85 million plus interest at 8 per cent per annum, and a claim for the expenses of the action. As noted above, the AC in the Scottish proceedings includes at [15] the averment that Mr Duthie persuaded Mr Taher to bring the BVI claim.

Lord Sandison explains in his recent judgment on expenses at [20] that there was a “section 1 petition process” followed by “the grant of commission and diligence on 18 October 2023”. As he explains, “dawn raids” then took place at the residences of Mr Ford (first defender) and Mr Cormack (second defender) and the offices of Melville (fifth defender) and Regal Consultancy International Limited (seventh defender) (Regal). A large amount of documents, hard copy and electronic, were recovered, though many of them had nothing to do with the dispute. Lord Sandison allowed them to be used in related litigation elsewhere.

Also in October 2023, Mex began proceedings in the High Court in London (the English proceedings) under section 25 of the Civil Jurisdiction and Judgments Act 1982 ancillary to and in support of the Scottish proceedings. On 20 October 2023, Lavender J granted a worldwide freezing order against the defenders in the Scottish proceedings who were also the defendants in the English proceedings (the English WFO).

Subsequently in the English proceedings, on 1 December 2023 Mr Taher swore a lengthy affidavit giving an account on oath of what he said had happened. He defined as “the Conspirators” (at paragraph 7.1) Mr Ford, Mr Cormack, Mr Smith, Mr Gollits and Mr Duthie. The first four were defenders in the Scottish proceedings. Mr Duthie, alone among “the Conspirators”, was not. Mr Taher developed his allegations about “the Conspirators” at paragraph 108:

“108.

… the central allegations in the Scottish and English Proceedings, are that:

108.1

the Dubai Agreement [i.e. the settlement in December 2020] was entered into by myself and the MultiBank Group lawfully, but subsequent to the return of Colm Smith to Luxembourg, there became an unlawful means conspiracy which occurred (involving Stewart Ford, Michael Gollits, Colm Smith, Adam Duthie, VDH-AG, VDH-I and the other Conspirators) to pay and entice Colm Smith to renege on the Dubai Agreement and further, to issue the Luxembourg Summons.; and

108.2.

There is an unlawful means conspiracy in Scotland, which should be tried in that jurisdiction, which involves, amongst other things, the following:

108.2.1.

First, on the one hand for VDH-I to commence litigation in the BVI and allege fraud against me and against Colm Smith, pretending, albeit falsely, it is a separate entity from VDH-AG and is not part of the VDH Group and has no knowledge of the involvement of VDH AG with Colm Smith, CSM and the other Conspirators; and

108.2.2.

Second, on the other hand, for VDH-AG (sister company to VDH-I, working hand in hand with VDH-I) to enter into the unlawful means conspiracy, pay and work with Colm Smith and his company, CSM, so as to entice and/or induce and/or bribe him to renege on the Dubai Agreement, disappear and not defend the fraud allegations against him by VDH-I; and

108.2.3.

Third, through utilising VDH-I as the sole protagonist alleging fraud against me in the BVI, shield Michael Gollits, VDH-AG and the VDH Group, from allegations of illegal trading in gold, breach of fiduciary duty in relation to the value of the Notes, deceiving the Noteholders as to the real value of the Notes and other wrongdoings by Michael Gollits and VDH-AG; and

108.2.4.

Fourth, the price that VDH Group (including VDH-AG and VDH-I) will have to pay Colm Smith, his master Stewart Ford, Brian Cormack and other Conspirators is not only to pay € 8.6 million from 1 January 2021 to July 2023, but to also, for VDH-AG to become the investment manager to CSM, and issue Junk Bonds amounting to US$ 5.6 billion, in order to both give credibility to these Junk Bonds and also shield and conceal the involvement of Stewart Ford in the Bonds and the profits arising therefrom (in breach of the FCA life ban on Stewart Ford who suffered the heaviest fine in the history of the FCA amounting to circa GBP 76 million for issuing similar Junk Bonds as those now being issued by CSM under the synopsis of VDH-AG); and

108.3.

Needless to say, the result of the concealment of the involvement of VDH-AG with Colm Smith and CSM and the unlawful means conspiracy tantamount to abusive behaviour by VDH-I to conceal facts, deceive and mislead the BVI Honourable Courts so as to cause unjustifiable and substantial harm to the MultiBank Group and I both economically and reputationally.”

Despite these serious allegations against Mr Duthie naming him as one of the “Conspirators”, neither he nor DCL have ever themselves been sued in any of Mex’s various actions, until this one. However, Mr Duthie (who was a director of Melville, the fifth defender in the Scottish proceedings and fifth defendant in the English proceedings), was not happy about what Mex and Mr Taher were saying about him in the litigation.

He took independent legal advice and consulted the Professional Ethics team at the Solicitors’ Regulatory Authority (the SRA) about his regulatory obligations and duties as a solicitor. He was aware that a hearing before Mr Simon Tinkler KC, sitting as a deputy High Court judge, was fixed for 14 and 15 December 2023. Certain defendants, not including Melville, were applying to have the English WFO discharged. Mex was applying to have it continued.

On 13 December 2023, Mr Duthie filed a detailed 46 page witness statement (Duthie (1)), with an exhibit, intending it to be considered at the hearing before Mr Tinkler KC the next day. He made the statement, he said in it, in his “personal capacity” and “in my capacity as a director of [Melville]”. He CE-filed it and emailed it at 6.13pm on 13 December to the silks and juniors instructed for the hearing. He added in the covering email:

“As I am not presently represented in these proceedings, please ensure that the witness statement is brought to the attention of Deputy High Court Judge Simon Tinkler at the resumption of the WFO continuation hearing tomorrow morning.”

None of the parties invited the deputy judge to read it and, I understand, he did not do so. But he did later discharge the English WFO as against the parties applying (Mr Gollits and the two VDH companies), as I shall explain. In Duthie (1), Mr Duthie said many things. He had clearly read some of the witness statements and skeleton arguments on which he commented. [CA (5)].

There is no dispute in this case that the contents of Duthie (1) (and later statements to which I am coming) made reference to material that falls within the definition of “Confidential Information” in the services agreement and subsequently the addendum agreement, which preserved the prohibition against divulging client confidential information at any time. However, in the defence and counterclaim, to which I will come later, it is denied that those matters were or are confidential because of Mr Duthie’s defences to this claim.

On 15 December 2023, Mr Tinkler KC acceded to the application to discharge the English WFO as against Mr Gollits and the two VDH companies. He refused Mex’s application to continue the English WFO. The approved transcript of his judgment was issued on 25 January 2024 and is publicly available: see [2023] EWHC 3394 (KB). While there was a good arguable case against the three defendants, he did not find a real risk of unjustified dissipation of assets by them. He found that full and frank disclosure had not been given to Lavender J (when different counsel and solicitors had been instructed).

The claimant had been “highly reckless in its attitude to compliance with its obligations”, he noted at [8]. He gave details of the failures of disclosure at [75]-[120]. I will not repeat them here. Among the points were that Lavender J had wrongly been told MultiBank had a “blameless reputation in the industry”, when in fact it was on a watch list issued by the Financial Conduct Authority (the FCA) warning against dealing with it and to “beware of potential scams”.

Mr Taher’s past censure by Stanley Burnton J and other criticisms in past English court proceedings had been omitted; so had Mr Taher’s past contempt of court and an arrest warrant issued against him for failing to attend hearings. The BVI proceedings had been presented in a selective way that was “misleading in itself and by omission” ([81]). Statements about control of the VDH companies were misleading. Lavender J had not been told the full facts about the regulatory history of the VDH companies and Mr Gollits; he was given a version that was “significantly different from the truth” ([118(5)]).

On 3 April 2024, in the Scottish proceedings, Mr Ford (in the Dominican Republic) signed a 30 page witness statement in support of the defenders’ defence, for recall of the seizure orders made in October 2023 and seeking an order for a “caution for expenses” (which in England would be called security for costs) in the sum of £750,000. Mr Duthie accepts that he helped Mr Ford with the drafting of that witness statement which was, self-evidently, asking the Court of Session for relief that would be contrary to the interests of Mex.

The statement included at paragraph 9 et seq section headed “Seven Lies”. Among them were said to be the “lie” that the conspiracy to injure Mex’s business had ever existed; that the MultiBank Group had an “unblemished” regulatory record; and that the defenders had paid a $7 million bribe to Mr Smith. The tone and language of the witness statement appears to owe much to Mr Duthie. Reference was made to the judgment of Mr Tinkler KC, in particular quoting it at [20] (Footnote: ²), where he said:

“… [Mex] makes no allegation that any defendant has misappropriated any assets belonging to it, or anyone else. The only assets which are said to have been wrongfully taken are the €36,000,000 which was transferred into the MultiBank Group in 2020 and for the return of which the defendants are suing in the BVI.”

The rest of the statement recited the history of the matter including past dealings between Mr Ford, Melville and Mex; the history of the BVI proceedings; and other matters. The concluding paragraph stated that Mr Ford considered that “the claim against me has no merit. I feel strongly that the Pursuer has invented a claim in order to try and avoid the fraud proceedings in the BVI”. Mr Duthie does not deny his part in the production of that witness statement, though he says the evidence in it comes from Mr Ford and not from him.

Two days later, on 5 April 2024, Mr Duthie himself made another detailed witness statement in the English proceedings (Duthie (2)), with a lengthy exhibit. He stated that it was made in support of an application by Mr Ford, Mr Cormack, Melville, Melville Consultancy International Ltd and Regal, to discharge the English WFO as against them. At paragraph 1, Mr Duthie stated that he made the statement in his capacity as a director of Melville.

At paragraph 6, he explained that the statement “replicates and supplements” Duthie (1). He was submitting Duthie (2) because he understood no party had sought to rely on Duthie (1); whereas Duthie (2) was now relied on by the parties applying to discharge the English WFO. Since the two witness statements are similar, I need not rehearse the contents of Duthie (2) in any detail here. The particular passages of which complaint is made by Mex in this action are set out (as in the case of Duthie (1)) in a confidential schedule (Schedule 2) to the particulars of claim.

The paragraphs complained of over and above what is complained about in Duthie (1) are paragraphs 53, 63 and 112. They set out Mr Duthie’s beliefs on certain matters that, he does not dispute, derive from his role as General Counsel to the MultiBank Group. Mex says these are breaches of Mr Duthie’s duties of confidence. Again, Mr Duthie’s response is that he accepts that parts of the witness statement refer to matters falling within the definition of “Confidential Information”; but not that the passages complained of have the quality of confidence, because of the defences to this claim on which he relies.

On 16 and 17 April 2024, a hearing took place before the Court of Session in Edinburgh. It is common ground that Mr Duthie attended. The application of the defenders was to discharge the interim relief Lord Sandison had granted in October 2013. Mex’s case is that Mr Duthie was “assuming what appeared to be the role of a legal representative or quasi-legal representative and providing information/instructions to the Ford Defenders” (i.e. to Mr Smith, Mr Ford, Mr Cormack, the two Melville companies and Regal).

The defendants’ case is that Mr Duthie attended in his capacity as a director of Melville; that he had ceased acting for Mex in July 2023; that his professional relationship with the “Ford Defenders” predated DCL’s engagement by Mex by over a decade; that the Ford Defenders were falsely accused in the Scottish proceedings of conspiring to injure Mex; that he did not need any information confidential to Mex to know that the allegations were false; that the assistance he provided was based on matters that Mex had placed in the public domain; and that those matters were not confidential or privileged due to the “iniquity exception” to privilege and confidentiality. The defendants also say any disclosure of confidential information was de minimis.

The present claim was filed on 23 April 2024. On 2 May, Mex applied for an urgent interim injunction, supported by a witness statement from Mr Taher expressing shock that a solicitor and former General Counsel should have behaved in the way he had, revealing Mex’s confidential information and acting against its interests in the Scottish proceedings. The particulars of claim in this action were served on 17 May 2024.

On 20 May 2024, the defendants offered undertakings to the court, acceptable to Mex, pending the hearing of the interim injunction application. These were embodied in an order of Sweeting J made by consent on 29 May 2024. On 17 June 2024, Mr Duthie made a further lengthy witness statement, this time over 100 pages long (Duthie (3)), with over 1,000 pages of documents exhibited to it. He relies on it in support of the defendants’ defences to this action. He says it is “beyond dispute” that [CA (6)].

It is sufficient here to quote paragraphs 3 to 8 of that statement:

“3.

For the reasons set out in this statement, I deny that I or DCL have breached any confidentiality obligations, whether contractual or equitable. In summary, the information that the Claimant objects to my using was either already in the public domain or had been disclosed by the Claimant and/or Naser Taher, thereby waiving any confidentiality and/or privilege that it contained.

4.

In addition, my position is that, for the reasons set out below, the information about which the Claimant complains was not confidential and/or privileged in any event, [CA (7)]. … .”

In June 2024, Mex gained access to the documents seized in October 2013 from the homes of Messrs Ford and Cormack and the offices of Melville and Regal. Lord Sandison has permitted use of these documents in other litigation which, I understand, includes the BVI proceedings, the English proceedings and this action. The defendants then served their defence on 12 July 2024, with a counterclaim for a declaration that they are “entitled to make use of the documents, information and / or matters referred to and / or set out in the Particulars of Claim … .”

On 15 July 2024, Mr Taher filed a further witness statement in response to Duthie (3). Mr Taher’s evidence in that statement is to the effect that he is a man of truth, honesty and integrity; and that it is Mr Duthie who is the dishonest one; Duthie (3), said Mr Taher, “comprises of umpteen lies and untruths” designed to distract the court from his inexcusable breaches of confidence and of his duties as a solicitor. He described Mr Duthie’s allegations against himself and Mex as “untenable”. The rest of the statement seeks to engage with other aspects of Duthie (3) including giving Mr Taher’s version of the factual position and why he says it is correct and Mr Duthie’s version is not. To say there is a conflict of evidence between the two men is putting it mildly.

The hearing of the interim injunction application was due to take place on 19 July 2024, but on the day before that, the defendants offered to continue up to trial the undertakings embodied in Sweeting J’s order of 29 May 2024. The application for an interim injunction was therefore adjourned by consent until trial, with the undertakings continuing up to trial in very similar terms, as set out in a further consent order of Sweeting J made on 26 July 2024.

The English WFO, meanwhile, remained in force as against all the English defendants (also being the Scottish defenders) except as against the two VDH companies and Mr Gollits who had, it will be recalled, persuaded Mr Tinkler KC to discharge it as against them. Mex had obtained permission to appeal against that decision and the appeal was argued from 22 to 24 July 2024. The appeal was dismissed for the reasons (which I need not repeat here) given in the reserved judgments of the Court of Appeal (Males and Coulson LJJ and Sir Julian Flaux C) handed down on 8 August 2024: see [2024] EWCA Civ 959.

The defendants obtained expert evidence from German and the BVI law, [CA (8)] on the assumptions of fact the experts were invited to make. The defendants later applied for permission to rely on those reports but the application has not yet been determined because a case and costs management conference in November 2024 was adjourned after it was overtaken by the present application for summary determination of the claim. I therefore consider the reports de bene esse.

The report on German law is from Herr Rechtsanwalt Jens Dieckmann, an attorney in Bonn and is dated 18 October 2024 (the Dieckmann report). It includes a declaration of compliance with CPR rule 35. It is detailed, but the executive summary is conveniently much shorter: [CA (9)].

The report on BVI law is from Ms Kim Hollis KC, a former director of public prosecutions in the BVI, and is dated 22 October 2024 (the Hollis report). It also includes a statement of compliance with CPR rule 35. It is long and detailed and draws heavily on transcripts of two judgments in the BVI proceedings, one from Jack J dated 4 October 2021 and the other on appeal to the Eastern Caribbean Supreme Court dated 21 February 2023. Again, it is convenient here to quote just the executive summary (omitting a footnote): [CA (10)].

On 7 November 2024, Lord Sandison gave directions for trial of the Scottish proceedings from 10 June 2025, for 15 days, with a deadline of 31 January 2025 for Mex’s witness statements and 7 March 2025 for the defenders’ witness statements. Several Scottish defenders asked for an order that Mr Duthie should attend to give evidence. Lord Sandison issued a “warrant for citation” requiring Mr Duthie to attend as a witness. The effect of that warrant was later described by Mr Andrew Kinnier KC (sitting as a deputy High Court judge) as follows, in his judgment: see [2025] EWHC 426 (KB), at [20]:

“Although there was considerable debate in correspondence about the meaning and effect of the citation, it is the equivalent of a witness summons. On its face, the minute for warrant of citation (or what I shall call the Scottish summons), simply requires Mr Duthie to attend trial as a witness. It does not require the prior disclosure of any documents by him and it does not require the production of a witness statement before he gives evidence, or indeed any witness statement.”

On 14 November 2024, Wallbank J summarily determined the BVI claim by VDHI in MBFX’s favour. Permission to appeal has since (in February 2025) been granted, but the appeal has not yet been listed. Lord Sandison later noted (see his recent judgment on costs, at [66]) that VDHI and its noteholders had been unable to make any representations and Wallbank J had appeared to rely heavily on documents seized in the Scottish proceedings; Lord Sandison commented that “VDHI’s claim was displaced, but that in itself establishes little or nothing about the veracity of Mex’s claim in these proceedings”.

A dispute then arose as to whether Lord Sandison’s “warrant for citation” of Mr Duthie permitted him to make a written witness statement, which would not be consistent with the undertakings he had given (embodied in Sweeting J’s latest order); or whether it merely required him to attend court and give such oral evidence as the judge might allow. While that was debated in correspondence, on 22 November 2024 the present application was made to strike out part or all the defence and counterclaim and/or for summary judgment in this action.

On 20 December 2024, the defendants filed written evidence in response to the present application, together with voluntary particulars of the defence and counterclaim (the voluntary particulars), a Part 18 request and a reply to Mex’s defence to counterclaim (which by then had been served). The defendants’ solicitors contended in correspondence (wrongly, as Mr Kinnier KC later found) that the present action was redundant because Lord Sandison’s warrant for citation meant Mr Duthie was compelled to give written evidence in the Scottish proceedings.

In the voluntary particulars, the defendants in effect put forward a defence to the present application for summary judgment, taking issue on legal as well as factual points made in the witness statement of Mr Hastings supporting the present application for a summary outcome to the action. Mr Hastings’ witness statement contains a lot of argument and rhetoric as well as factual evidence. The demarcation between pleadings, written evidence and submissions (of law and fact) has not been fully observed by either side.

In the voluntary particulars, the defendants rely on the statutory and regulatory obligations of Mr Duthie as an officer of the court, under the Solicitors’ Act 1974, the Legal Services Act 2007 and the SRA’s Principles and Code of Conduct. Further particulars of the defence of waiver of confidentiality and privilege by placing documents in the public domain were provided in the voluntary particulars. Retention of client property by the defendants was admitted and it was (and is) admitted that this is a breach of the services agreement but denied that this breach has caused Mex any loss. The de minimis defence was also advanced.

Attached to the voluntary particulars was a confidential schedule in tabulated form stating in respect of each allegation of breach of confidentiality, the defendants’ case on (in the middle column) “[p]rior waiver of confidentiality … by [Mex] / entry of information into public domain”; and the defendants’ case (in the right hand column) on [CA (11)].

Essentially, the case on waiver of confidentiality advanced in the confidential schedule is that Mex has placed in the public domain and waived confidentiality in respect of documents deployed by it in the BVI proceedings, the Scottish proceedings and the English proceedings; and by some judicial statements about Mex and Mr Taher in publicly available judgments concerning their history of using abusive litigation for tactical reasons as a negotiating method.

[CA (12)].

On 31 January 2025, the defendants made an application to vary the undertakings given in the latest consent order made by Sweeting J. It appears to have been intended to outflank the current summary judgment and strike out application by demonstrating the redundancy of the present proceedings because of a supposed obligation on Mr Duthie to make a written statement in the Scottish proceedings, thereby requiring him as a matter of law to tell all to the Court of Session, dooming the Scottish proceedings to failure and vindicating his stance in the present action.

Not surprisingly, Mr Kinnier decided, sitting in private and giving an extempore judgment on 31 January 2025, with an approved transcript dated 14 February 2025 (by consent publicly available: [2025] EWHC 426 (KB)) that it should be for the Scottish court, applying Scots law, to decide what the law required of Mr Duthie under the warrant of citation. It was not for an English judge to determine those matters in English proceedings. The warrant of citation was not a material change of circumstances. The undertakings therefore remained in place; indeed, they still do.

The warrant of citation remained in place and the deadline for filing Mex’s witness statements in the Scottish proceedings, 31 January 2025, arrived. Mr Duthie would not be able to file a witness statement in those proceedings but he could give oral evidence at the trial in June 2025, if and to the extent that the trial judge permitted. However, on 31 January 2025 (see Lord Sandison’s recent judgment on expenses, at [22]), the withdrawal of Mex’s agents was intimated to the court, no statements from Mex having been lodged.

At a hearing in the Court of Session on 5 March 2025, Mex appeared by fresh agents and counsel and indicated that it proposed to abandon the Scottish proceedings. Meanwhile in England, a hearing before Freedman J had been fixed for 10 and 11 March 2025, to determine an application by Mr Smith and CSM to discharge the English WFO as against them. On 6 March 2025 Mex’s chief operations officer, Mr Kattoura, filed a witness statement in that matter.

In the statement, Mr Kattoura said he wanted to explain to the court why Mex “felt it had little choice but to discontinue the claim against the defendants in Scotland”. Insisting that the claim was well founded on its merits and that the defenders had indeed taken part in the unlawful conspiracy as alleged, he said the costs of continuing the Scottish proceedings would be high and there would not be enough solvent defenders to pay the damages of £85 million, which overlapped with costs orders Mex had obtained in the BVI proceedings.

Mex filed its notice to discontinue the Scottish proceedings on 7 March 2025. At the hearing in London on 10 March 2025, Freedman J discharged the English WFO as against Mr Smith and CSM. He declined to deal with issues of costs and arising from Mex’s cross-undertaking in damages. He ordered Mex to file further witness evidence addressing its reasons for discontinuing the Scottish proceedings, if so advised, by 31 March 2025. A further hearing would be listed as necessary to deal with outstanding issues.

On 20 March 2025 Lord Sandison, in his own words (see his recent judgment on expenses, at [23]):

“found Mex liable to the defenders in the expenses of the causes on an agent and client, client paying basis; found the defenders’ agents entitled to charge an additional fee … with 15% specified as the level of increase in the charges to be allowed at taxation in respect of each such paragraph, found Mex liable to the Scottish defenders for payment of interim expenses in the sum of £150,000 in each process and authorised the sum lodged as caution to be uplifted and paid to their agents.”

Such was the state of play when, on 3 and 4 April 2025, this matter was ably argued before me. Lord Sandison has since, as I have mentioned, given reasons for his decision on expenses in a written opinion at the request of the Scottish defenders. I was provided with that judgment after the hearing, without objection from either side and without any party asking to add to their submissions in the light of it. I was also provided with a transcript of the hearing before Freedman J on 10 March 2025, but I need not refer to it here.

For Mex, Mr Thomas Grant KC submitted that Mr Duthie was in flagrant breach of his duties of confidence as a solicitor providing legal services to Mex under the services agreement and then the addendum agreement. There was no material distinction between acts of Mr Duthie and acts of DCL; it was unnecessary to treat them as separate (Footnote: ³). Mr Duthie admits wrongfully retaining client documents; admits having received Mex’s confidential information; admits having disclosed it; and admits having used it against Mex’s interests. Mex says that is the beginning and end of the case; there is no arguable defence.

Mr Grant’s submissions were advanced with vigour and in detail. I will focus on his main points. He referred me to solicitors’ duties of confidence as explained in Flenley and Leech on the Law of Solicitors’ Liabilities (4^th ed., 2020), in chapter 6 (Solicitors’ Duties of Confidentiality), written by him. The client’s privilege is “a fundamental condition on which the administration of justice as a whole rests” (R. v. Derby Magistrates’ Court, ex p. B [1996] 1 AC 487, per Lord Taylor CJ at 507D); and “a fundamental human right long established in the common law”: R. (Morgan Grenfell & Co Ltd) v. Special Commissioner of Income Tax [2003] 1 AC 563 at [7] per Lord Hoffmann.

The duty survives termination of the retainer and continues indefinitely: Bolkiah v KPMG [1999] 2 AC 222, HL per Lord Millett at p.235C; Flenley and Leech, op. cit. at 6.08-6.09. It extends not just to information but also to views formed about the merits of cases the client (or former client) is or was involved in (Marsh v Sofaer [2003] EWHC 3334 (Ch) per Sir Andrew Morritt VC at [43]–[44]). The duty is broad, absolute, strict and unqualified, Mr Grant submitted. He referred me to his detailed exposition in Flenley and Leech at 6.12 to 6.31 and some of the many cases there cited.

The court may not withhold equitable relief to enforce the duty on the ground that it would be just to override the privilege, Mr Grant submitted; see Nourse LJ in Goddard v Nationwide BS [1987] QB 670 (CA), at 685E-F:

“… there is no discretion in the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the communication, the justice of admitting or excluding it or the like. The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delay.”

That passage was cited with approval by Patten LJ in Macpherson v Wise [2011] EWCA Civ 399, at [34]. He held, at [36], that:

“the balance between preserving the confidentiality of privileged communications and the risk of the Court reaching a wrong conclusion on the facts has been struck firmly in favour of the need to preserve confidentiality.”

Mr Grant referred me to the only known example of a solicitor attending court voluntarily, to give evidence consisting of information about his former client: Wilson v Rastall (1792) 4 Term Reports 753. Buller J referred to a bribery case tried “a few years ago” at Salisbury in which:

“Reynolds, who had formerly been the attorney of Mr. Petrie, but who was dismissed before the trial of the cause, wished to give evidence of what he knew relative to the subject while he was concerned as the attorney, I strongly animadverted on his conduct, and would not suffer him to be examined: he had acquired his information during the time that he acted as attorney; and I thought that the privilege of not being examined to such points was the privilege of the party, and not of the attorney: and that the privilege never ceased at any period of time. In such a case it is not sufficient to say that the cause is at an end; the mouth of such a person is shut forever”.

That passage had, Mr Grant pointed out, been approved by Lord Taylor CJ in the Derby Magistrates case, at 504E-H; and by Lord Millett in B v Auckland District Law Society [2003] 2 AC 736, PC, at [44].

Mex did not, Mr Grant explained, dispute that a narrow “fraud / iniquity exception” to the privilege existed, normally where a third party rather than the solicitor himself seeks to break open the privilege. It is closely circumscribed because of the jealously guarded nature of legal professional privilege. Mex relies on Mr Grant’s account of the exception given in Flenley and Leech at 6.46 and 6.47, which is detailed and refers to many cases.

More recently, Mr Grant reminded me, in Al-Sadeq v. Dechert LLP [2024] KB 1038 Popplewell LJ had, in the context of disclosure of documents, reviewed the authorities in detail and held that the exception applies to documents which, on the balance of probabilities ([108]), were brought into existence as part of, or in furtherance of, the iniquity ([166]); and that “[t]he abuse of the lawyer / client relationship is a prerequisite to the exception applying at all” ([168]).

In this case, Mr Grant submitted, there was no plea stating the particulars of the iniquity relied on. The voluntary particulars had not been incorporated into the pleaded defence; no application to do so had been made. The confidential schedule to those particulars only referred to “alleged” fraud and wrongdoings “allegedly” committed. And the allegations of fraud made in Duthie (1) were “so lacking in prima facie credibility that the court can, and should, dispose of them at the summary judgment stage.”

Mr Grant suggested that nothing in the Scottish proceedings (including their discontinuance) or the BVI proceedings could be invoked to support the application of the iniquity exception. The fraud claim brought by VDHI in the BVI proceedings has been struck out, albeit subject to appeal. The Scottish proceedings were not commenced until well after the end of the retainer; they cannot, therefore, engage the iniquity exception. The decision not to proceed says nothing about their merits which remain undetermined, Mex submitted.

Mr Grant submitted that the burden of proving the application of the iniquity exception was on the defendants. It could not be discharged by pleading unparticularised acts of fraud and then hoping, like Mr Micawber, that something would turn up at the disclosure stage. That approach is contrary to the authorities establishing that an inadequately pleaded claim in fraud will not be allowed to be proved at a trial and the plea of fraud can be struck out without the need for a trial.

It is trite, said Mr Grant, that a former solicitor in possession of information incriminating the former client, is not free to inform the competent authorities or anyone else of their client’s guilt; even if the former client is in ongoing civil proceedings misleading a court by placing before it an account the solicitor knows or believes is not true; just as a solicitor must not, in criminal proceedings where the client tells the solicitor he is guilty, inform the police or the prosecuting authorities of the client’s confession.

The defendants, said Mr Grant, cannot bring themselves within the iniquity exception, whether by invoking the exception in the services agreement for disclosures that are “required by law” (clause 7.2(b)) or under the equivalent common law, equitable and fiduciary duties implied into the retainer. The privilege, he said in Flenley and Leech, op. cit. at 6.46, “attaches to all, or almost all, communications between client and solicitor”. (Footnote: ⁴) There is no broad public interest defence and none arguably operated here.

Mr Duthie had not, as he said he would, applied for directions as the solicitor trustee had done in in Finers v Miro [1991] 1 WLR 35, suspecting for good reasons that a trust fund of which he was a trustee had been set up through fraud and was being used in furtherance of iniquity; and fearing that he could become liable as a constructive trustee. Nor had Mr Duthie gone through the documents one by one to test the application to each of the iniquity exception. Rather, he had arrogated to himself a broad right to make sweeping allegations of fraud in flagrant breach of confidence, under the spurious guise of whistleblowing.

Mr Grant went on to submit that an analysis of the correspondence and emails denuded the allegations of wrongdoing of any credibility or substance, even at the summary judgment stage. Mr Duthie, said Mr Grant, had used a tone that was vindictive and full of invective and had issued threats of exposure as a bargaining chip in negotiations. It was more likely than not that Mr Duthie had invented his allegations against Mr Taher. He was willing to resume working for Mex under the addendum agreement.

The central and most serious allegation deployed in support of the iniquity exception is unsupported by any documents, Mr Grant submitted. In his skeleton argument he confidently sought to portray Mr Duthie’s suspicions about Mex as unfounded and, probably, invented. Duthie (1) was, he said, “109 pages of bald assertions”. The court should not take them at face value; instead, it should conclude now, without the need for an expensive trial or cross-examination, that Mr Duthie’s allegations against Mr Taher and Mex are false and not worthy of belief.

Mr Grant poured scorn on the experts’ reports, saying there was no permission to rely on them; they were partial and not neutral; they were based on disputed facts; and Ms Hollis was not told that Jack J had been recused from the BVI proceedings. They were therefore “fundamentally flawed”, he submitted. The defendants had “attempted to manufacture evidence … and then attempted to portray it as objective and conclusive”, which was “improper”, he said.

Mr Grant went on to submit that the documents recovered in the Scottish proceedings were an important plank in the decision of the BVI court to strike out the BVI proceedings, including the allegation that the settlement agreement and the Tomlin order were a sham. The documents were considered by the Court of Appeal in Mex Group Worldwide Ltd v. Ford [2024] 1 WLR 975 and Males LJ had commented at [58] that they “provide what appears to be considerable support for the claimant’s case [in the Scottish proceedings]”.

I sought to test with Mr Grant the boundaries of his argument. Can a solicitor or barrister sue his or her ex-client for defamation if the ex-client falsely and publicly attributes to the lawyer advice that the client should pursue a dishonest and criminal course of conduct? No, was his answer. The lawyer must meet the former client’s insult with loyal and stoic silence. The ex-client could plead in his defence the duty of confidence and client privilege. The false and defamatory publication would not, according to Mex, amount to iniquity negating the client’s privilege and the lawyer’s continuing duty of confidence.

The boundaries of the duty are explored in Flenley and Leech at 6.46. It can be overridden where the solicitor believes disclosure is necessary to prevent the client or a third party committing a criminal act likely to cause serious bodily harm; or to prevent continuing or anticipated child abuse by the client or a third party; or “[w]here the solicitor or a third party has reasonable grounds to suspect that the retainer is being used as a cloak for fraud, whether civil or criminal” (6.46 at (c)). For the latter proposition, footnote no. 6 adds that:

“The concept of fraud is treated broadly by the courts and extends, for instance, to conduct in fraud of creditors falling within s 423 of the Insolvency Act 1986: see generally Barclays Bank v Eustice [1995] I WLR 1238, CA … .”

I asked Mr Grant whether the categories where the iniquity exception applies are closed. He did not submit that that they are necessarily closed, recognising that development of the case law shaping the boundaries of the iniquity exception had been “incremental”. But, he submitted, contrary to the defendants’ submission this was not an area where the law was developing. The law was already clear.

For the defendants, Mr Tom Poole KC noted that the iniquity exception is not a true exception to privilege since “the illegal object of the communications to which they apply is such that they can never come within the scope of the privilege in the first place” (Passmore on Privilege, 5^th ed., 2024, at 8-002). The privilege applies to solicitor and client communications in the “ordinary run of cases” (Al Sadeq v. Dechert LLP, per Popplewell LJ at [58], citing Glidewell LJ in R. v. Snaresbrook Crown Court, ex parte DPP [1988] QB 532 at pp. 537-8).

Accepting that the ordinary run of cases includes cases where the evidence suggests the client is telling a false story to his lawyers, Mr Poole said this was a case where, at least arguably, Mex’s conduct “is an abuse of the relationship which falls within the ordinary course of such engagement” (Al Sadeq, at [58]). Writing before the Court of Appeal’s decision in Al Sadeq, Charles Hollander KC in Hollander, Documentary Evidence (15^th ed., 2024) at 25-14 suggested that where:

“in civil proceedings there is deception of the solicitors in order to use them as an instrument to perpetrate a substantial fraud on the other party and the court, that may well be indicative of a lack of confidentiality which is the essential prerequisite for the attachment of legal professional privilege. The deception of the solicitors, and therefore the abuse of the normal solicitor/client relationship, will often be the hallmark of iniquity which negates the privilege.”

In similar vein, in Passmore on Privilege, op. cit. at 8-067 (after the Court of Appeal’s decision in Al Sadeq), the learned author suggests that whether there has been the necessary abuse of the professional relationship gives rise to “questions of ‘fact and degree’” but that:

“it would seem that a wholesale fraud on the English legal system, as in Kuwait, [Kuwait Airways Corp v Iraqi Airways Co (No 6) [2005] 1 WLR 2734] the construction via innocent solicitors of a false alibi (as in Hallinan) [R (Hallinan) v. Middlesex Crown Court [2005] 1 WLR 766] or a false strategy of concealment and deceit of a court in relation to a litigant’s assets which involve the litigant in perjury, forgery and contempt, as in the JSC BTA decision [JSC BTA Bank v Ablyazov [2014] 2 C.L.C. 263], will attract the iniquity exception, whereas merely lying to a solicitor about an aspect of the litigant’s evidence (for example, ‘…cases where a communication is made by a client to his legal adviser regarding the conduct of his case in criminal or civil proceedings, [where] such communication is untrue and would, if acted upon, lead to the commission of the crime of perjury in such proceedings’ [footnote: per Lord Goff in Francis & Francis [1989] A.C. 346 and 397] will usually not.”

There must be a prima facie case of fraud, said Mr Poole. Mex’s conduct, on the defendants’ case, amounted to [CA (13)]. That iniquity negated the privilege Mex would otherwise have. Mr Poole accepted that Mr Duthie had not sought directions from the court, as in Finers v. Miro and as he had indicated he would. That decision, not cited in Al Sadeq, says nothing about whether a solicitor who is not also a trustee can apply for directions, Mr Poole said (cf. Coulson LJ at [89] in Candey Ltd v. Bosheh [2022] 4 WLR 84).

Here, Mr Poole submitted, Mr Duthie, though not a named defendant, “has at all times essentially been defending Mex’s allegations against him—specifically that the disputed (“sham”) BVI settlement was his idea … [CA (14)]. The claim was therefore akin to a claim by a client against its former solicitor. Mr Duthie has a good prospect of establishing at trial the necessary abuse of the solicitor-client relationship, Mr Poole submitted.

This was not an ordinary case of breach of confidence. Mr Duthie had not acted for personal gain or out of spite. He had waited until December 2023 before speaking out in Duthie (1). The retainer had ended in July 2023 but he was prompted to speak out by [CA (15)]. He did not act from mere suspicion; he had direct knowledge of [the misconduct] and had contemporary documents (albeit wrongfully retained) to prove it. The false portrayal of his legal advice was a core part of Mex’s case. [CA (16)]

Mr Duthie relies on numerous contemporaneous documents in the exhibit “ALD 1”, exhibited to Duthie (3) which, he says, corroborate and prove his account … [CA (17)].

The claim was fundamentally unsuitable for summary determination, Mr Poole argued. The court would have to determine the questions of “fact and degree” that arose, in order to decide whether this case falls outside the “ordinary run of cases” arising in solicitor-client relationships. That would require disclosure, analysis of the contemporaneous documents, witness evidence including expert evidence (such as that already obtained) and testing of the parties’ evidence in cross-examination. The court would need to decide whether [CA (18)].

Mr Grant, for Mex, submitted that the defendants’ reliance on a positive duty to make the disclosures in question was hopeless. In no case had a solicitor’s statutory and regulatory obligations been held to override the duty of confidence and the client’s privilege. The provisions quoted in the voluntary particulars did not arguably assist the defendants. Nor does R v Cox and Railton (1884) 14 QBD 153. I was invited to discount Mr Duthie’s claim to be a genuine whistleblower. Further, in so far as [CA (19)] is relied on, the point no longer has any force as the Scottish proceedings have ended.

For the defendants, Mr Poole said the “duty to disclose” defence is arguable. He accepted that the iniquity exception would be likely to apply if the “duty to disclose” defence succeeded. The same reasoning that supports the iniquity exception applies equally here, he submitted. If the exception applies, the statutory and regulatory duties of a solicitor (cited in the voluntary particulars) to uphold the law and prevent misleading of the courts not only permits but must compel the making of the disclosures necessary to set the record straight.

Turning to the defence of waiver of privilege by placing documents in the public domain in legal proceedings, Mex made five points that were developed in detail in its skeleton argument. The pleading was inadequate. The principles of waiver of privilege do not apply here. Even if they did, the privileged material has not been deployed in the relevant sense. Privileged materials do not enter the public domain merely by bringing legal proceedings.

Mr Grant referred to cases on waiver: Mohammed v. Ministry of Defence [2013] EWHC 4478 (QB) per Leggatt J at [14]; Brennan v Sunderland City Council [2009] ICR 479, per Elias J at [63]-[67]; General Accident Fire and Life Assurance Corporation Ltd v. Tanter [1984] 1 WLR 100, per Hobhouse J at pp.114-115; R (Jet2.com) v. Civil Aviation Authority [2020] QB 1027, per Hickinbottom LJ at [113]; and Magnesium Elektron Limited v. Neo Chemicals and Oxides (Europe) Ltd (No.2) [2018] FSR 11 at [47] (Daniel Alexander QC).

Mr Grant complained, first, that the defence and the voluntary particulars did no more than recite the bringing of the Scottish, English and BVI proceedings; the pleaded case did not specify with precision exactly what materials had entered the public domain. Further, only parties to litigation can rely on waiver for the purposes of disclosure in the litigation; an outsider cannot and the defendants are not parties in those proceedings (see Eurasian Natural Resources Corporation Ltd v. Dechert LLP [2016] 1 WLR 5027, per Gloster LJ at [56]).

Next, Mr Grant submitted that the content of Mr Duthie’s advice is not deployed in litigation; it is referred to only in the Scottish proceedings where the AC goes no further than saying he “sought to persuade Mr Taher that the pursuer should intimate a claim …. on the premise that the funds advanced by the pursuer over the whole course of dealing were to be treated as loan finance to the eleventh defender”; without saying what the content of Mr Duthie’s advice (which it is accepted he denies giving) was, i.e. whether the claim would be well-founded; cf. Digicel Ltd v Cable & Wireless Plc [2009] EWHC 1437 (Ch) (Morgan J).

Mex contended further that where documents are in the public domain, a solicitor may nonetheless be bound by the duty of confidence not to make public reference to them (Hilton v. Barker Booth & Eastwood [2005] 1 WLR 567, HL, per Lord Walker at [34]). And to the extent that there were any waiver of confidentiality, it would extend to precise communications and documents. It would not negate the duty of confidentiality more widely; nor would it extend to opinions formed or conclusions reached by Mr Duthie (Holyoake v. Candy [2017] EWHC 387 (Ch), per Nugee J at [39]).

For the defendants, Mr Poole relied on the analysis of Lord Bingham CJ in Paragon Finance plc v. Freshfields [1999] 1 WLR 1183, CA, at pp.1188B-G: a client may not waive privilege in a partial and selective manner, such that unfairness and misunderstanding may result. A client who sues his former solicitor:

“cannot pick and choose, disclosing such incidents of the relationship as strengthen his claim for damages and concealing from forensic scrutiny such incidents as weaken it. He cannot attack his former solicitor and deny the solicitor the use of materials relevant to his defence”.

That reasoning applies here, Mr Poole submitted, even though the defendants are not actual parties to any proceedings other than the present action. Mr Duthie is named as one of the “Conspirators” in the English proceedings; and in the Scottish proceedings is named as the “architect” of the BVI proceedings; [CA (20)].

The defendants’ position is properly pleaded, says Mr Poole: see paragraph 13.4 of the defence (supplemented by the confidential Appendix 1) outlining the basis on which certain categories of information in Schedule 1 to the particulars of claim has entered the public domain. The averments are then supplemented further by the voluntary particulars and the Confidential Schedule to the voluntary particulars (which could, if necessary, be incorporated into the defence and counterclaim, by amendment).

The extent of Mex’s waiver of privilege and confidentiality is, Mr Poole argued, a matter for assessment of evidence at trial. Summary judgment should only be granted where there are no reasonable grounds for supposing that disclosure may materially affect the evidential position. The court must avoid the error of being drawn into a mini-trial, making judgments on disputed evidence or being persuaded to evaluate the weight of the evidence (Three Rivers DC v. Bank of England [2001] UKHL 16, per Lord Hope at [95]; Okpabi v. Royal Dutch Shell plc [2021] 1 WLR 1294, per Lord Hamblen at [105]-[110]).

The defendants have a separate defence, Mr Poole submitted, that any breach of confidence (which is denied) was de miminis as disclosures were made only to parties in the Scottish proceedings and the English proceedings, in direct response to Mex’s allegations about those same issues in those proceedings. Whether “the game is worth the candle” is a matter for trial. Now that the English and Scottish proceedings are or almost are at an end, any disclosure of information having the quality of confidence is likely to be insignificant.

Mr Duthie, moreover, does not accept that he disclosed any confidential information to the Scottish defenders. This, the defendants say, is a factual issue for trial. It was already the defenders’ position that the allegation against them of unlawful conspiracy was preposterous and false. And, contrary to Mex’s allegation, he denies that he assumed a role akin to that of solicitor on the record in those proceedings. He helped Mr Ford with drafting but did so as Mr Ford’s friend and as a director of Melville, without disclosing any confidential information. Mr Ford already knew the allegations against him were baseless.

Mex asserts that the notion of a de minimis defence cannot be seriously entertained: the disclosure was to persons engaged in litigation adverse to Mex. The duty of confidentiality is absolute and any threatened breach will be restrained. A final injunction is sought in this action and summary judgment is appropriate, Mr Grant submitted. The disclosures go well beyond the Scottish proceedings; they include filing Duthie (1) and (2) in the English proceedings. There is a continuing risk of further breaches which should be restrained.

Finally, the defendants submitted that there are other compelling reasons why the case should proceed to a full trial. Among other reasons, a trial could not be avoided even if summary judgment were granted in relation to the iniquity exception. It would still be necessary to examine the extent of any breaches of duty. A trial on quantum would be necessary. The damages (or equitable compensation) claimed, are not quantified. Mex will have to give disclosure of documents showing the reasons for abandoning the Scottish proceedings and in relation to the inevitable discharge of the English WFO.

Mex points out that the remedy of striking out under CPR rule 3.4 is not subject to any proviso that a plea may be allowed which would otherwise be struck out, for “some other compelling reason”. Any need for a trial in relation to quantum is no good reason to deny rightfully claimed summary remedies in relation to liability and injunctive relief, Mr Grant submitted; particularly given the obvious hostility and ill will Mr Duthie bears towards Mr Taher and Mex. The breaches of duty are flagrant and the court’s decision now should reflect that.

Normally, in an application for summary determination, the factual (as well as legal) position is taken at its highest in favour of the party proceeded against. That is not an absolute rule; that party’s factual stance may be inadequately pleaded and therefore not properly put in issue in the case; or, it may be too far-fetched to be credible and worthy of belief, even at the summary determination stage. If the factual case of the party proceeded against is taken at face value, that does not exclude summary determination against him if his claim or defence is doomed to fail even on his best factual case.

The prohibition against disclosure of “Confidential Information” as defined in clause 7 of the services agreement, does not apply to “any use of disclosure …. required by law” or to “any information which is already in, or comes into, the public domain other than through the [defendants’] unauthorised disclosure”. Those provisions are, or are approximately, to the same effect as the equivalent equitable obligations of confidence. I do not find it necessary in this application to differentiate between contractual and equitable obligations of confidence.

In my judgment, there are potential triable issues of fact arising from the pleadings and written evidence before me. First, was the architect of the BVI proceedings Mr Duthie [CA (21)]? I think it is unlikely that the truth lies somewhere in between. The conflict of evidence is so stark that it leaves little room for both to be telling different versions of the truth. I think one of them must be giving an account he knows is untrue, i.e. lying. I cannot decide in this application which of them should be believed and who was the driving force behind the decision to bring that claim.

It is common ground that the basis of the BVI proceedings was (per AC at [15]) that:

“the funds advanced by [Mex Clearing] … were to be treated as loan finance to [Mex Securities], which was by that time the party holding the proprietorial interest in the assets in which the note investment had been invested.”

And it is common ground that those proceedings were swiftly settled by means of the agreement in Dubai, embodied in the Tomlin order. I find that there is a triable issue of fact as to whether the settlement agreement was a sham, as Mr Duthie (and others in other litigation) contend; or whether it was genuine, as Mex and Mr Taher contend. Again, I think it likely that one or other is knowingly putting forward an untruthful account, i.e. lying. I cannot decide in this application whether the settlement was genuine or not.

These disputes of fact are serious and concerning. The latter dispute has been aired in pleadings and witness statements in other litigation, but none has been determined authoritatively in any other litigation. I do not regard Wallbank J’s summary determination in MBFX’s favour (dismissing any fraud by Mex) as authoritative. It was made without representations from VDHI. It is subject to appeal, with permission to appeal. It has been treated with some scepticism by Lord Sandison. A few months earlier, the English Court of Appeal was much more circumspect than Wallbank J about whether Mex was involved in fraud.

There is also, in my judgment, a potentially triable issue of fact as to whether [CA (22)].

Subject to the court granting permission to rely on the Dieckmann report and the Hollis report, which I have read de bene esse, I consider there is [CA (23)]. There is an outstanding and undetermined application for permission to rely on those reports at trial, if there is a trial.

The above are issues of fact that would arise if there were a trial. But Mex says the allegations are not properly pleaded, that they are unsupported by documents and that Mr Duthie’s evidence is incredible and unworthy of belief. Mex also says no trial is needed because Mr Duthie admits receiving Mex’s confidential information, wrongfully retaining it and using it against Mex’s interests; that the iniquity exception does not arguably apply; and that the other defences are unarguable.

I reject the submission that the case against Mex and Mr Taher … is not properly pleaded. The defence and counterclaim and the voluntary particulars, including the confidential schedule to them [CA (24)]. It is true that the defendants’ pleadings and particulars are not always polished and elegant, but I do not criticise the pleaders; the want of elegance owes much to the chaotic and stressful way in which litigation on several fronts has evolved.

It is true also that the defendants’ case is in witness statements and confidential annexes as well as ordinary pleadings; while, conversely, much of Mr Hastings’ witness statements for Mex consists of argument rather than evidence. The defendants’ pleaded case does put in issue the factual points which I find to be triable issues of fact, as stated above. Thus, the confidential schedule to the voluntary particulars refers (albeit inelegantly) to: [CA (25)].

Reference is then made beneath that heading to the [CA (26)].

It is true that the detailed allegations of fact constituting the [CA (27)] are to be found in Duthie (1), (2) and (3). But Mex is acutely aware from the pleadings, particulars, witness statements and documents of the case it has to meet. It would be elevating substance over form to debar the allegations on pleading grounds because the voluntary particulars and averments in witness statements have not, or not yet, been formally incorporated within the defence and counterclaim by amendment.

I accept that unless the information or documents at issue are by some means deprived of the quality of confidence, the court has no discretion to withhold relief, including summary relief where appropriate. But I am not persuaded by Mex that, even if it is assumed in the defendants’ favour that all those issues of fact were determined in their favour, it is nevertheless unarguable that the iniquity exception applies.

I bear in mind that the courts have found it difficult to strike the right balance between allowing the privilege to be used to cloak wrongdoing, and encouraging clients to make a clean breast of the facts to their solicitor without fear that he will inform the authorities of the client’s wrongdoing. Where the exception does not apply, the court must uphold the privilege. That is clear but does not help to determine whether the exception applies.

In Wilson v. Rastall the report does not reveal what evidence Reynolds would have given, had he been allowed to give any. In R v Cox and Railton, the solicitor’s contested evidence was known and was admitted to prove that he had been consulted for the purpose of facilitating a fraud by the clients. Groves J of the ten-judge court said at 163 that “the case is of great general importance” and that in the court’s later reserved judgment they would be “endeavouring to define the principles with clearness to act as a guide in future cases”.

When Stephen J gave the reserved judgment of the court, he examined many authorities and overruled some. After the lengthy review, he said at pp.175-6:

“We were greatly pressed with the argument that, speaking practically, the admission of any such exception to the privilege of legal advisers as that it is not to extend to communications made in furtherance of any criminal or fraudulent purpose would greatly diminish the value of that privilege. The privilege must, it was argued, be violated in order to ascertain whether it exists. The secret must be told in order to see whether it ought to be kept. We were earnestly pressed to lay down some rule as to the manner in which this consequence should be avoided. The only thing which we feel authorized to say upon this matter is, that in each particular case the Court must determine upon the facts actually given in evidence or proposed to be given in evidence, whether it seems probable that the accused person may have consulted his legal adviser, not after the commission of the crime for the legitimate purpose of being defended, but before the commission of the crime for the purpose of being guided or helped in committing it. We are far from saying that the question whether the advice was taken before or after the offence will always be decisive as to the admissibility of such evidence. Courts must in every instance judge for themselves on the special facts of each particular case ...”

The court was, then, not able fully to “define the principles with clearness to act as a guide in future cases”. In modern parlance, the issue is fact sensitive. There were then many further cases. Popplewell LJ examined the most important of them comprehensively in Al Sadeq and concluded at [58] that (as was common ground in the appeal) the privilege is not lost in the “ordinary run of cases”:

“merely because the solicitor is engaged to conduct litigation by putting forward an account of events which the client knows to be untrue, and which therefore involves a deliberate strategy to mislead the other party and the court, and to commit perjury …. . Accordingly the touchstone in distinguishing such cases from those where the exception applies is whether the iniquity puts the conduct outside the normal scope of such professional engagement or is an abuse of the relationship which falls within the ordinary course of such engagement … .”

The merits threshold for the iniquity exception is, save in exceptional cases, the balance of probabilities (ibid. at [63]). While there may be rare cases where “a balance of harm exercise may have a part to play”, that is more likely where a court is adjudicating on disclosure. I agree with Mex that, as Popplewell LJ held, “[t]he abuse of the lawyer / client relationship is a prerequisite to the exception applying at all” (ibid. at [168]).

In my judgment, at a trial the defendants may prove on the balance of probabilities that Mex abused the lawyer-client relationship and that the iniquity exception deprives some if not all the information disclosed by Mr Duthie of its quality of confidence. [CA (28)]. If that were proved at a trial of this action, it could well be a case where the iniquity exception applies.

I reject the submission that the allegations against Mr Taher are so far-fetched and unlikely that, even at this stage, they can be dismissed as unworthy of belief. If Mr Duthie’s allegations are not made out at a trial, it is likely the court would find that it is he that is being knowingly untruthful. Mr Grant did not explain convincingly why his evidence could be dismissed as lies without him being cross-examined and having the opportunity to show the court the truthfulness of his testimony. Mr Taher in his July 2024 witness statement dismisses Mr Duthie’s account as “umpteen lies and untruths” but I am not willing to do so.

Further, there are indications in the written evidence that Mr Duthie’s allegations may have substance. He was not sued in the Scottish proceedings, nor in the ancillary English proceedings. Yet, on 1 December 2023 in the English proceedings – about six weeks after Mex had commenced the Scottish proceedings – Mr Taher swore an affidavit in the English proceedings, conspicuously including Mr Duthie within the definition of “Conspirators” in the conspiracy alleged against the Scottish defenders and English defendants; and accusing him of unlawfully conspiring with the other “Conspirators” to injure Mex (paragraphs 7.1 and 108 of Mr Taher’s affidavit).

Why was Mr Duthie not sued at that stage? A credible working hypothesis at this interlocutory stage is that Mex did not wish him to be freed from his confidentiality obligations. A party which sues its former solicitor waives privilege in respect of advice given and communications relevant to that advice, (per Lord Bingham CJ in Paragon Finance Ltd). Mex may have refrained from suing Mr Duthie personally because Mr Taher did not want Mex’s client privilege to be lost.

Mex would then be able to rely on Mr Grant’s proposition, if correct, that a solicitor defamed by a former client cannot publicly defend himself unless he is also sued by the former client. Mr Duthie evidently did not accept that proposition; having consulted the SRA and taken independent legal advice, he attempted to deploy Duthie (1) in the English proceedings [CA (29)].

I accept Mex’s submission that from then on, Mr Duthie was acting against Mex’s interests and using documents which fell within the definition of “Confidential Information” to do so. In the Scottish proceedings, he assisted Mr Ford with his witness statement and attended hearings. He then again acted against Mex’s interests by producing Duthie (2) in the English proceedings.

I attach evidential significance to the fact that the Scottish proceedings were discontinued at a time when it had become clear that Mr Duthie might, if and to the extent that the Scottish court permitted, give oral evidence in those proceedings. In agreement with Freedman J, I find Mr Kattoura’s account of other reasons for discontinuing those proceedings is less than convincing.

It is relevant to the plausibility of Mr Duthie’s account that by discontinuing the Scottish proceedings Mex has foregone the opportunity to have an authoritative determination of the triable issues I have mentioned. If impecuniosity of the defenders was the main reason for discontinuing, that was something Mex could have thought about earlier. There is no convincing evidence of a sudden deterioration in the Scottish defenders’ financial position.

I also bear in mind the setting aside of the English WFO for, among other reasons, failure to make full and frank disclosure. There is evidence of Mr Taher having committed acts by way of abusing the court’s process in previous proceedings and having committed contempt of the High Court in England. There is no similar back story in Mr Duthie’s career as a solicitor, unless his association with Mr Ford and the latter having been heavily fined by the FCA can be counted against him.

Moreover there is, as Mr Poole submitted, documentary support for Mr Duthie’s account, which could undermine Mr Taher’s evidence that he is the man of truth and Mr Duthie the liar. It is in documents that, Mr Duthie says, establish the iniquity and, Mex says, establish the breach of confidence. To assess this evidence, I need to look behind the curtain of privilege [CA (30)].

Viewed in the light of those events and communications, I accept Mr Poole’s submission that this could (to put it no higher) be a case falling within the iniquity exception, raising a prima facie case of iniquity. Some of Mr Duthie’s actions in response may have been rash and imprudent; especially, sending Duthie (1) to counsel and a judge rather than applying to the court for directions. But the correspondence does suggest he may not have acted out of pique or spite but out of concern for his livelihood and reputation and a belief that he was duty bound as an officer of the court to set the record straight.

For those reasons, the iniquity defence has a realistic prospect of succeeding. I agree with Mr Poole that the claim is unsuitable for summary determination and that a trial is required and is appropriate. There are triable issues of fact, as I have stated above. The facts alleged by Mr Duthie to constitute the iniquity defence do not necessarily fit neatly into a category covered by previous authority and the law may not be completely settled. I will therefore refuse the application for summary judgment or strike out as regards the iniquity defence.

I come next to Mr Duthie’s contention that he came under a positive duty to make the disclosures he made. The facts or alleged facts that are said to support the existence of that positive duty are largely the same as those supporting the iniquity defence and have already been covered. The argument relies on the statutory and regulatory obligations on solicitors cited in the voluntary particulars. These are, as mentioned above, obligations as an officer of the court, under the Solicitors’ Act 1974, the Legal Services Act 2007 and the SRA’s Principles and Code of Conduct.

I do not find it necessary to embark on a separate analysis of those provisions and their impact on the facts here. The obligations of solicitors in the regulatory sphere are more developed now than they were when old cases such as R. v. Cox and Railton were decided. There are now regulations requiring solicitors to satisfy themselves that funds to pay their fees are not the proceeds of crime or laundered money. Those obligations are particularly relevant to a solicitor’s decision whether to take on a client in the first place.

Here, the solicitor alleges that he has discovered in the course of acting for a client that [CA (31)]. There are likely to be cases where there is an overlap between the regulatory and conduct obligations of a solicitor, and the iniquity exception to the client’s privilege. However, disclosures in confidence to regulatory authorities, without tipping off the client, may involve different considerations because such a disclosure is not made directly into the public domain and may never reach the public domain.

For present purposes, it is sufficient to say that I find the issue arguable and fit for trial, though it may add little to the iniquity issue. There is an obvious tension between a client’s privilege and disclosure of the client’s alleged wrongdoing to a regulator; just as there is between a client’s privilege and the loss of it where the iniquity exception applies. The present case may provide an opportunity, at trial, for the interrelationship between the two issues to be explored more fully than is appropriate at the present preliminary stage.

I have considered with care the rival contentions on this issue. Mex’s points seem to me largely sound: waiver of privilege is pleaded in a general way, by reference to the bringing of the various lawsuits. The pleading does not target individual documents or individual acts of waiver. Merely referring in a pleading or witness statement to advice having been received from a lawyer does not waive privilege as to the content of the advice. Mr Duthie was not a party in the proceedings in which, he says, the waiver occurred.

These are powerful points. Further, I accept that information and documents that have entered the public domain with limited currency and publicity may not be referred to and commented on publicly by a former solicitor in breach of client privilege, with the object or effect of adding to the publicity. The analysis of the cases discussed in Flenley and Leech, op. cit. at 6-21 to 6-25 supports Mex’s propositions. I therefore very much doubt whether Mr Duthie would be able at trial to justify his disclosures, or all of them, based on waiver alone.

Mr Poole’s counter-arguments rely heavily on Lord Bingham CJ’s proposition in Paragraph Finance Ltd that the concept of waiver applies where a solicitor is sued by a former client. The latter cannot at once attack the solicitor and deny him the use of materials relevant to his defence. That principle would have to be extended here to include what could be called a “quasi-party”, accused in evidence of taking part in the conspiracy to injure Mex but not sued, perhaps by inference for the very purpose of avoiding waiving client privilege.

I can see some force in the defendants’ propositions on the facts here; or rather, what may turn out to be the facts, which are taken for present purposes at their highest in their favour. Mr Poole also points to clause 7.2 of the services agreement providing that the prohibition against disclosure of confidential information does not apply to any information “which is already in, or comes into, the public domain otherwise than through [Mr Duthie’s or DCL’s] unauthorised disclosure”. There are arguments to be had on this issue though at present Mex appears to have the better of the arguments.

I am not willing to grant summary judgment preventing the defendants from making their arguments on waiver; nor to strike out the defence of waiver as necessarily doomed to fail. My decision is that the waiver defence is weak but not unarguable. If I am wrong about that, there is some other compelling reason why it should be allowed to proceed to trial; namely, that I am allowing the more substantial iniquity issue to go to trial; and it is just and convenient that the parties should (within reason) be allowed to air all their points at trial, rather than the court undertaking the exercise of “carving them up” at this stage.

I propose to adopt and apply the same reasoning to Mr Duthie’s other defences: first, that any breach of confidence was de minimis because any such disclosures were made in the Scottish proceedings which were soon to end; and in the English proceedings which would shortly end with discharge of the English WFO; and second, that when assisting the Scottish defenders in the Scottish proceedings (in particular, by helping Mr Ford to draft his witness statement), Mr Duthie did not in fact disclose any confidential information.

As Mex points out, if its client privilege was not lost and Mr Duthie was subject to the usual post-retainer obligations, he remained obliged not to act against Mex’s interests in the Scottish proceedings and the English proceedings. It is therefore likely that this defence would stand or fall with the defence of iniquity. Unless iniquity deprives the information of the quality of confidence, such disclosures as were made were wrongful; and it unlikely that Mr Duthie told Mr Ford and the other Scottish defenders no more than what they already knew.

There is some room for findings of fact about how far Mr Duthie’s disclosures went, but it is already clear that whatever the extent of the disclosures made, Mr Duthie acted against Mex’s interests in the Scottish and English proceedings. That must have been wrongful unless he can justify doing so by Mex’s accusations against him of having devised its litigation strategy in December 2020 and of having taken part with the Scottish defenders in the alleged conspiracy to injure Mex’s interests by unlawful means.

I find the de minimis and “no disclosure” defences weak but just arguable. I am not prepared to strike them out or grant summary judgment in respect of them. If I am wrong about that, I find the same compelling reason as before for allowing them to go to trial: that these defences may overlap with other defences, in particular the defence of iniquity; and it is just and convenient that the parties should (within reason) be allowed to air all their points at trial.

Mr Duthie does not advance any defence worth the name to the allegation that he wrongfully retained client property. He retains the documents he has used in these proceedings. He admits that he blind copied them to a private email address. He used them in his three witness statements. He admits those breaches of clause 12 of the services agreement, preserved by the addendum agreement. He says the obligation under clause 12 was owed by DCL, not him personally; and that Mex has suffered no loss by reason of DCL’s breach.

There is nothing in the first point. DCL was Mr Duthie’s alter ego and is sued in this action. As for the second point, whether or not Mex has suffered any loss, it is in principle entitled to injunctive relief compelling the return or destruction of the documents he has retained. Mex did not pursue interim relief compelling their return but does seek a final injunction requiring their return or destruction and submits that it should have summary judgment on that point.

I have found this part of the case difficult. On the one hand, I find no arguable defence to this part of Mex’s claim. The defence that DCL owed the obligation is no defence at all; nor is it a defence that Mex may have suffered no financial loss in consequence of the breach of contract. DCL could be ordered now to return or destroy the documents and Mr Duthie could be ordered now to procure that DCL return or destroy them, in practice by doing so himself.

The difficulty with this part of the case is that the documents wrongfully taken from Mex by the defendants are the very documents that have, among others, persuaded me that the iniquity defence is arguable. This is troubling because I cannot escape the conclusion that, absent the wrongdoing, Mr Duthie would have been far less likely to avoid summary judgment on the rest of the claim. In that sense, he has made use of documents which (in advance of disclosure in this action) he had and has no legal right to possess, to help his defence survive.

There is no defence of necessity where property is wrongfully taken. Mr Duthie is not a regulator of Mex’s financial service provision. On the other hand, if he had not taken the documents constituting “Client Property”, he might well have failed to avoid summary judgment or the striking out of his defence of iniquity, which he has done. He needed them to establish that the iniquity defence was arguable, as I find it is. Had he not taken them, Mex would doubtless have accused him of “Micawberism” and making baseless allegations [of fraud] which must be fully pleaded at the outset and not rely on fishing for disclosure.

It is true that Mr Duthie could have returned the documents at the end of his retainer in July 2023 and relied on his memory of their contents thereafter. If he had made notes of their content in August 2023 while his memory of them was fresh, he could not have been criticised for relying on his best efforts to reconstruct their content from memory. But he would have been vulnerable to an allegation that he had invented the documents and that they did not exist. Undeniably, his case is stronger with the actual documents.

In principle, Mex must be entitled to summary judgment on the claim for wrongful retention of client property. The court should not allow to go to trial a claim to which there is no arguable defence. However, the issue of remedy raises pragmatic considerations. The documents retained by Mr Duthie (or most of them) will be disclosable by Mex in these proceedings. The most important are already exhibited on a confidential basis to witness statements.

It would be a futile waste of time and costs to require them to be destroyed or returned now, only to be disclosed back again to the defendants. I will therefore grant summary judgment on the claim for delivery up of client property, but I will defer the remedy until the conclusion of the trial, or further order. In the meantime, Mex is protected by the defendants’ continuing undertakings, as embodied in the latest order of Sweeting J. The defendants cannot make any use of the documents except for the purposes of defending this claim.

For all those reasons, I refuse the application to strike out the defence, or part of it. I refuse the application for summary judgment except in respect of the claim for delivery up or destruction of Mex’s documents and any other property belonging to Mex and retained by the defendants. They have no arguable defence to that part of the claim. I will adjourn until the conclusion of the trial or further order the issue of remedy in respect of that part of the claim.

I will invite the parties in the usual way to agree the way forward in the light of this judgment, to be embodied in the court’s order. Any matters that are not agreed can be dealt with by way of brief written submissions. I am grateful to counsel for the quality of their submissions and the diligence of their researches.