Whiteside v Russel Islands Plantation Ltd [2021] SBHC 36; HCSI-CC 449 of 2018 (6 May 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Whiteside v Russel Islands Plantation Ltd
Citation:
Date of decision:	6 May 2021
Parties:	John Whiteside v Russel Islands Plantation Limited
Date of hearing:	26 February 2021
Court file number(s):	449 of 2018
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona DCJ
On appeal from:
Order:	1. Order recusing Counsel Nimepo and his law firm from representing the claimant in this case. 2. Cost of this hearing is to be paid by Claimant to the Defendant.
Representation:	Mr. D. Nimepo for the Claimant Ms. A.S Willie for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Legal Practitioner Rule 1995 Rule 11 (1) and (2), Rule 11 (4), Rule 10 (3)
Cases cited:	Ripple v Chacha Clan, Lever Solomon Islands Limited v SINUW, RIPEL & Others V Tuhanuku & Others HCSI 275/16, Peoko v Bako [2019] SBHC 34, Faxiang Yang v China United (SI) Corporation Ltd [2018] SBHC 31, D & J Construction Pty Ltd v Head [1987] 9 NSWLR 118, Lever Solomon Ltd v Van Vlymen

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 449 of 2018

BETWEEN

JOHN WHITESIDE
Claimant

AND:

RUSSEL ISLANDS PLANTATION LIMITED
Defendant

Date of Hearing: 26 February 2021
Date of Ruling: 6 May 2021

Mr. D. Nimepo for the Claimant
Ms. A.S Willie for the Defendant

RULING ON APPLICATION DOE RECUSAL

Faukona DCJ: A claim in Category A was filed by the Claimant on 20^th November 2018. There are six reliefs sought with the first relief comprise of nine parts.

2. The gist of the claim as alluded was an allegation of breach of employment contract in both oral and in writing. The breach took precedent when the Defendant terminated the employment of the Claimant on 27^th October 2017.
3. Obviously, by rescinding the contract of employment would rise to filing of this claim. The Claimant under the breach sued the Defendant for unpaid salary, unpaid superannuation, loss of dividends, unpaid annual leave, travel loss, compensation for loss of annual leave. Also for compensation for breach of contract, compensation for loss of property, and payment of incentive agreement.
4. The Claimant is a Fijian citizen resided in Solomon Island since April 2001. He was engaged by the Defendant on or about 22^nd October 2002 and confirmed appointed as an employee on 27^th February 2003.
5. According to clause 2-1 of the written employment contract dated 28^th February 2003, the Claimant was employed as a General Manager of the Defendant Company. The contract was extended three other times and subsequently due to expire on 7^th June 2017. Through the transition of extension of the contract the terms and conditions remain intact.
6. This application is for recusal pursuant to Rule 11(1) and (2) of Legal Practitioners Rule 1995, seeking order to recuse Mr. Desmond Nimepo from representing the Claimant because of his involvement in representing the Defendant in eleven (11) previous High Court cases.
7. Mr. D. Nimepo did not deny representing the Defendant in those past occasions. However he states he stopped receiving and taking instructions from the Defendant and Leavers Solomon Limited around July 2017. He further stated that all eleven cases are all eviction and are too remote in as far as the substance of the current case is concern.
8. He submits further that in the case of RIPEL V Chacha Clan, HCC 22 of 2014, was discontinued in 2017, it was an eviction case. In the case of Lever Solomon Islands Limited v SINUW he was not involve in. And in the case of RIPEL & Others V Tuhanuku & Others HCSI 275/16 was a defamation case.
9. Rule 1 (1) states;
   • (1) Subject to the legal duty of a legal practitioner to the Court, a legal practitioner shall give undivided fidelity to his client’s interest, unaffected by
     • (1) Any interest of the legal practitioner;
     • (2) Any interest of any other person;
     • (3) The legal practitioner’s perception of the public interest.
   • (2) If a legal practitioner has any interest in a matter which;
     • (a) May conflict with; or
     • (b) Is adverse to the interest of his client, he shall decline to represent.
     • (c) Is adverse to the interest of his client, he shall decline to represent or shall withdraw from representing that client,
   • Subsection 4;
   • (4) A legal practitioner or a firm of a legal practitioner shall not represent or continue to represent conflicting interest in litigation.
10. There are four grounds upon which this application premises. One that the Counsel for the Claimant had acted simultaneously for and against the Defendant in the High Court Civil proceedings for a period of 8 months thus breached his professional obligation including Legal Practitioners (Professional Conduct) Rule 1995.
11. Secondly there is risk that confidential information obtained by the Counsel who previously acted for the Defendant be used to its prejudice. Thirdly, to continue act would breach his duty of loyalty and undivided fidelity to his former client. Fourthly, to continue to act would undermine the appearance of justice being done.
12. Counsel Nimepo submits denying neither having interest in this case nor its outcome. He submits there is no evidence to show he has a conflict of interest. He refers to the definition in Osbornes Concise Law dictionary, 8^th Edition, to support his assertion.
13. It appears the argument raises by Counsel Nimepo is but concern one aspect of the law that is having interest in the case. And I agree that was the issue Court dealt with in the case of Peoko V Bako^[1]and nothing else.
14. Counsel Nimepo even attempt to explain why he represented both parties in three cases including the current for eight (8) months. I will deal with that issue later.
15. The law in dealing with Rule 11 of the Legal Practitioners (Professional Conduct) Rule 1995 encompasses many aspects of conduct by a Solicitor. It does not confine to interest and dissemination of information to the contrary alone, but more.

Acting Simultaneously representing both parties for 8 months.

16. The submission that Counsel Nimepo at that time of filing these proceedings in November 2018; for 8 months thereafter, he was still a Solicitor on file for RIPEL (current Defendant) in two High Court proceedings. He was not granted permission to act for the Claimant. In fact he ceased to act for RIPEL when he was removed by RIPEL by way of filing notice of change of advocate.
17. Counsel Nimepo briefly attempted to explain his predicament but the evidence concerning duel representation for 8 months has not been negative at all. The record shows it all. Therefore it is a clear breach of Rule 11 of the Legal Practitioners (Professional Conduct) Rule 1995; in particular Rule 11 (4) which read, “...a legal practitioner or a firm of lawyers shall not represent or continue to represent conflicting interests in litigation”.
18. Counsel Nimepo further argues an attempt to put into perspective his valid representation, by submitting that there was no contract to restraint contained within his retainer agreement with RIPEL. That argument in my view is an absolute misconception of the law. With this ground alone it would be proper to restraint Mr Nimepo from representing the Claimant.

Risk of use of confidential information to prejudice Defendant.

19. There is no dispute Counsel Nimepo had acted for Defendant in dozen of Cases since 2009 – 2016. However Mr. Nimepo articulated that the facts of those cases are different. He states they concern restraining, possession, evictions from land and defamation, different from this case which concern breach of employment contract.
20. It is with no doubt Mr. Nimepo could have obtained vast volume of information from the Defendant Company. 7 years of continuous working corporately under the retainer agreement is sufficient time to acquire such vast information.
21. In the case of Faxiang Yang V China limited (SI) Corporation Ltd,^[2] the Court had accepted the submissions made by Mr. Johnstone. On reading of that case the facts are almost the same except to the extent that Mr. Suri had failed to disclose important document despite being formally requested more than once.
22. Mr. Johnstone had put before Court a submission authoritative in nature, exploring all avenues and issues related to restraining of Counsel, he began;
    • “Mr Suri’s switching side appears to subversive, he is acting in complete disregard of his duties of loyalty to CUSI.... The original proceedings were lengthy, complex, hard fought and expensive. It is continuing. As a matter of policy and in the interest of Justice, Mr. Suri and his firm should be restraint from continuing to act”.
23. The Counsel continues, “Solicitor ought to be restrained from acting against a former client if there is a risk that the Solicitor will disclose the information to the new client or if there is a risk that the Solicitor will use the confidential information against the former client. Similarly it is not a consideration whether legal practitioner in fact recalls the confidential information against the former client. Importantly, the confidential information may include information concerning the strategy for running the case, the way in which the former client understands the case, or to show a substantial risk of misuse or disclosure of confidential information. The risk must be real, as opposed to fanciful theoretical evidence in the case. It is not necessary”.
24. The test is whether a reasonable man informed of the facts might reasonably anticipate such danger of a breach of duty not to communicate confidential information.
25. Confidential information as proposed in the above case is broad, apart from information related to usual business and operation of RIPEL, that is in terms of commercial and industrial disputes, contracts including contracts of employment, as well as financial position of RIPEL of which Mr. Nimepo should have some direct knowledge derived from receiving payments from RIPEL for his legal services.
26. In applying the test to the facts of this case, the shift in representation by Counsel Mr. Nimepo undoubtedly, will prompt as ordinary reasonable man to conclude that Mr. Nimepo by switching had breached his duties.
27. By representing the Defendant in about eleven (11) High Court cases makes the Counsel Nimepo so familiar with the Defendant’s confidential and sensitive information, the Defendants manner of approach to litigation in Court, strategy in running the case and attitude in litigation in particular, how to settle litigation and on what terms.
28. The Claimant alleges he was not paid on many headings as promised. This case derives from the basis of financial position of the Defendant. As a former Counsel Mr. Nimepo who received payments for his services, is likely to adduce evidence or transmit general information that may prejudice the Defendant Company. With those reasons I would conclude by reflecting Rule 10 (3) of LPA which states, “A legal Practitioner shall not, without consent of his client, directly or indirectly (a) use the client’s confidence in any way detrimental to the interest of that client”.
29. In the current case Mr. Nimepo has not obtained any consent from the Defendant to switch, neither seeks leave from the Court.
30. As such Mr. Nimepo is acting in complete disregard of his duty of loyalty to the Defendant. As a matter of policy and interest of Justice, Mr. Nimepo and his firm should be restraint or recuse from representing the Claimant. See D & J Constructions Pty Ltd V Head,^[3] which the Court states, “The spectacle or the appearance that a lawyer can readily change side is very subversive of the appearance that justice is being done”.
31. It does not matter whether the Counsel was not recused in another case involving the Defendant that is HCCC no. 287/2018 LSL V Van Vlymen. It ought to be noted that each case depends on its own factual basis. If the Counsel was not recused it does not mean he would capitalize on and continue to represent and act for the Claimant against his formers client. It is a real risk in doing so.
32. I must accept that it is enough to see there is real and sensible possibility of misuse of confidential information. I must therefore recuse Counsel Nimepo and his firm from representing the Claimant in this case.

Orders.

1. Order recusing Counsel Nimepo and his law firm from representing the claimant in this case.
2. Cost of this hearing is to be paid by Claimant to the Defendant.

The Court.

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^[1] [2019] SBHC 34; HCSI-CC119 of 2012 (25 March 2019).
^[2] [2018] HCSI – 494 of 2017 (9 March 2018).
^[3] (1987) 9 NSWLR 118 at 123.