Raurau v Trades Transformation Co Ltd [2022] SBHC 41; HCSI-CC 312 of 2016 (13 May 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Raurau v Trades Transformation Co. Ltd
Citation:
Date of decision:	13 May 2022
Parties:	Timothy Raurau v Trades Transformation Company Limited, Lesley Tarzan Holosivi
Date of hearing:	21 April 2022
Court file number(s):	312 of 2016
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Kouhota; PJ
On appeal from:
Order:	Court I am satisfied that there is no confidential information in possession of Mr Olofia or there is a real likelihood that Mr Olofia will breach the professional code of conduct and share such information with counsel now acting for the claimant. The application to recuse L & L Lawyers is dismissed with cost against the applicant to be tax if not agreed.
Representation:	Mr Taupongi J for the Defendants/Applicants Mr Ngaingeri A for the Claimant
Catchwords:
Words and phrases:
Legislation cited:	Legal Practitioner (Professional Conduct) Rules 1995 r 11(8)
Cases cited:	Tropical Resources Development Co. Ltd v Dalgro (SI) Ltd [2003] SBHC 118, Bolkiah [1998] UKHL 52

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 312 of 2016

BETWEEN

TIMOTHY RAURAU
Claimants

AND:

TRADES TRANSFORMATION COMPANY LIMITED
1^st Defendant

AND:

LESLEY TARZAN HOLOSIVI
2^nd Defendant

Date of Hearing: 21 April 2022
Date of Ruling: 13 May 2022

Mr Taupongi J for the Defendants/Applicants
Mr Ngaingeri A for the Claimant

RULING ON THE APPLICATION FOR RECUSAL

Kouhota PJ
Background

1. On July 13, 2016, this proceeding was commenced by a claim (category B) filed by L & L Lawyers (“L&L”)
2. After the claim was served on the defendants, they engaged Rano & Company (“Rano’s Firm”) to act for them in these proceedings. The solicitor assigned to the case by that firm was Evans Olofia.
3. Tarzan Holosivi, the second defendant, met with Mr Olofia on several occasions and gave instructions for a defence and a counterclaim for the defendants. During those meetings, Mr Holosivi disclosed confidential information to Mr Olofia, including financial records of past transactions between the claimant and the defendants.
4. Sometime after April 2017, Mr Olofia left Rano’s firm and joined L&L Lawyers. Thereafter, Mr Olofia became the solicitor and barrister for the claimant in this case and appeared at all mentions and hearings in that capacity.
5. The applicants aver that Mr Olofia should be recused from acting for the claimant in this case on the grounds that;
   • (a) There is a real likelihood that Mr Olofia will use the defendants secrets and confidential information disclosed to him when he was their solicitor against the defendants; and
   • (b) The Court has a duty to afford the fullest protection to such information given in strict confidence and this can be achieved by recusing Mr Olofia from acting against the defendants in the same case.
6. The applicants further aver that in the event that Mr Olofia is recused, the firm he works for; L&L should also be recused on the grounds that;
   • (a) So long as Mr Olofia works for L&L, there remains a real likelihood that he will convey the said confidential information to any other lawyer of L&L who next acts for the claimant; and
   • (b) What transpires within the confines of the office premises of L&L, including what lawyers in that firm discuss with each other and access to the file for this case, is beyond anyone’s control so merely recusing Mr Olofia would not be sufficient to neutralise the possibility being complained of.
7. The applicants further rely on the facts deposed to in the fourth sworn statement of Tarzan Leslie Holosivi filed on October 7, 2021.

The Issues.

There is no dispute that Mr Olofia’ has represented the defendant in this matter when he was with Rano & Co. There is also evidence that after he moved to L& L, their lawyers had appeared on behalf of the claimant at two mention hearings.

(c) The question now is, is there a real likelihood that Mr Olofia will use the defendants secrets and confidential information disclosed to him when he was their solicitor against the defendants? This is a question of fact and must and can only be decided on the evidence before the Court.

The Law.

Rule 11(8) of the Legal Practitioners (professional conduct) Rules 1995 provides;

Where –

• (a) a legal practitioner has represented a client ;or
• (b) because of a legal practitioner’s association with a law firm he has had access to a client’s confidences’

That legal practitioner shall not thereafter use such information against his client’s interest or for the benefit of any other person

I think there is no equivalent provision in the Rules or the Legal Practitioners Act in respect of a law firm. The only assistance we can find is the Common Law.

This is a case where the solicitor who previously acted for the defendants is alleged to now act for the claimant in the same case. Mr Olofia however, has now withdrawn from acting in this matter on 15^th March 2021 hence the only issue now is whether L & L Lawyers, where he now works, should also be recused from acting for the claimant.

Counsel Taupongi for the defendant/applicant submits that the House of Lords in Bolkiah^[1] lay down the current Common Law test and urges the Court to follow the test in Bolkiah case. He submit that in applying the Bolkiah test, it is for his client as former client of Mr Olofia, to satisfy the Court that

Mr Olofia is in possession of information which is confidential to him and the disclosure of which he has not consented.

Counsel Taupongi submits the term confidential information as Lightman J elaborated on in Firm of Solicitors is information that is given in confidence which remain confidential to the former client, is capable of being remembered or recalled and it is relevant to the subject matter of the dispute between the former client and the new client.

Mr Taupongi submits that his client has provided particulars of information they gave to Mr Olofia when he was their solicitor at the Rano’s Firm which is confidential to his client. He submit that his client Mr Holosivi gave such information to Mr Olofia over a period of 10 months or more before Mr Olofia left Rano’s Firm. These include information about Mr Holosivi’s use of the claimants machines, payments and financial records of past transaction between the claimant and first defendant. That Mr Holosivi spent time discussing with Mr Olofia a strategy for defending this case. These information, counsel submits are his clients secrets. Mr Olofia in his sworn statement filed on 8/4/22 denied receiving any such information.

In Tropical Resources Development Co. Ltd v Dalgro(SI) Ltd ^[2] Palmer J (as he then was appear to have adopted Lightman test in the (Firm of Solicitors)^[3] when he paraphrased the test as “ Where a legal practitioner has represented a client and acquired “relevant confidential information’’ [as defined by Lightman J in firm of solicitors] he shall not be permitted to act for the opposite party in that same case or any other case whereby that information may be used to the detriment of his former client or for the benefit of any other person (obviously if it was used for the benefit of another person then most likely it would be to the disadvantage of the former client). Rule 11(8)(a) does not prohibit a legal practitioner who has represented a client from acting for the opposing party even in the same matter or any other matter, where he has not acquired any relevant confidential information or where there is no real risk of the disclosure of such information”

In the present case as alluded earlier, Mr Olofia has withdrawn from acting in this matter so the only question is, whether there is evidence of the likelihood that Mr Olofia will share any confidential information he was given by the defendant with the lawyer in his firm who is now acting for the claimant. Even if Mr Olofia had received confidential information from the defendant previously, there is no evidence that he can still remember such information or he is likely to share the information with the counsel now acting for the claimant. Mr Olofia has denied receiving any confidential information in his sworn statement filed on 22/4/22.

Mr Olofia is a lawyer and should be aware of the professional code of conduct required of a lawyer. Thus unless there is strong evidence that he is likely to share any confidential information which are known to him or he can still remember with the solicitor in L&L Lawyers currently acting for the claimant, the Court would be acting on mere conjecture if it grant the application. On the material before the Court I am satisfied that there is no confidential information in possession of Mr Olofia or there is a real likelihood that Mr Olofia will breach the professional code of conduct and share such information with counsel now acting for the claimant. The application to recuse L & L Lawyers is dismissed with cost against the applicant to be tax if not agreed.

THE COURT
JUSTICE EMMANUEL KOUHOTA
Puisne Judge

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^[1] [1998] UKHL 52; [199] 2AC 222; 1[1999] 1ALL ER 517; [1999] 2 WLR 215.
^[2] [2003] SBHC 118, HC CC 087 of 2003.
^[3] [1983] W.L.R. 16