Hadley v Sapolu [1999] WSSC 11 (5 August 1999)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

GEORGE H. HADLEY
of Letava, Businessman.
Applicant

AND:

KATALAINA MAKA SAPOLU
of Afiamalu, Solicitor
Respondent

Counsel: Mr P. Petaia for the Applicant
Mr C. Nelson for the Respondent

Date of hearing: 13 April 1999
Date of judgment: 5 August 1999

JUDGMENT OF JUSTICE WILSON

The applicant, a businessman, has moved by his counsel (in a proceeding I call variously ‘this proceeding’ and ‘the subsequent proceeding’), pursuant to what purports to be a notice of motion dated 1^st March 1999, for an order declaring that the respondent, a solicitor, is acting in conflict of interests in the action in this Court between Realty and Investments versus Malama Masina (hereinafter called ‘the main proceedings’) - CP 87/98.

The said notice of motion was not filed or taken out within the main proceedings (indeed it does not appear to have been filed at all) and it can therefore hardly be said that the motion to which the said notice of motion relates is an "interlocutory motion" under Part VIII of the Civil Procedure Rules. The said motion is an "originating motion" under Part XVIII and is one of the prescribed modes of beginning proceedings.

Part III and rules 10, 11 and 12 thereunder narrow the scope of the procedure set out in rule 188 which provides that, subject to rule 10 and a proviso regarding proceedings taken under the Divorce and Matrimonial Proceedings Act 1961, civil proceedings should be commenced by way of motion.

Rules 10, 11 and 12 provide:

"10. Commencement of Civil Proceedings - Subject to the provisions of any Act or any rules made thereunder, every civil proceeding in the Supreme Court shall be instituted either by way of action, or by way of motion, in accordance with these rules.

11. Actions - The following proceedings shall be instituted by way of action:
    

(a) Every proceeding for the recovery of debt or damages

(b) Every proceeding for the recovery of land or chattels

(c) Every proceeding for an order for specific performance

12. Other civil proceedings - Except where otherwise provided by any Act or by any rules made thereunder or by any order of the Court, all other civil proceedings shall be commenced by way of motion."
    

Rule 13 (in Part IV) prescribes how every action (including one commenced by way of notice of motion) shall be commenced, i.e. by filing with a Registrar of the Court a statement of claim intituled. "In the Supreme Court of .... Samoa," setting forth the names and descriptions of the plaintiff and defendant, the nature of the cause of action, and the relief claimed.

It was argued by Mr Nelson, on behalf of the respondent, that the motion is "defective and consequently void ab initio, as well as misconceived as to form." There is much force in this submission.

This action not having been properly commenced (by way of the filing of a statement of claim) and this action being defective because of non-compliance with the other requirements of rule 13 including, in particular, the failure to disclose either a cause of action or what relief is claimed, I consider that it should be dismissed. The defects are such that they are not, I think, capable of being corrected. If such a motion was moved within the main proceedings, it would still be defective, because the applicant is not a party to the main proceedings and he has no locus standi therein.

But there is another ground upon which the subsequent proceeding should be set aside. This proceeding by way of notice of motion is seeking a declaration. It is the law that a declaration will not be granted against a person who has asserted no right against the applicant nor formulated any specific claim against the applicant [see Re Clay, Clay v Booth (1919) 1 Ch 66].

Swinfen Eady M.R. used curt but picturesque language, in Clay v Booth supra to describe how this rule operates. His Lordship said (at p.78):

"This is really the position in the present case. The petitioners have not been attacked. No claim has been made against them; but they launched these proceedings to have it determined that someone, who has not made a claim and who has not asserted any right, has no claim and no right. In my opinion they are not entitled to do that."

(The emphasis is mine.)

If I may adopt and adapt the words of the Master of the Rolls, this is the position in the matter that is for my determination. The applicant, George Hadley, has not been attacked. No claim has been made against him; but he launched this proceeding (the subsequent proceeding) to have it determined that someone (the respondent) who has not made a claim against him, whether in her own right or as solicitor for and on behalf of a client, and who has not asserted any right against him, has no claim and no right. In my opinion the applicant is not entitled to do that.

In my judgment the respondent has not done, nor been shown to be likely to do, anything to warrant the applicant making her a respondent in a proceeding.

Furthermore, it is the law that the claim for a declaration must not be too indirect and insubstantial [see Thorne R.D.C. v Bunting (1972) 1 Ch 470].

As the respondent in this proceeding has asserted no right against the applicant whether personally or acting as solicitor for a litigant against him or otherwise, and as the respondent has certainly formulated no specific claim against the applicant whether personally or as solicitor acting on behalf of a litigant, the declaration sought ought not to be granted. In any event the claim for a declaration that a situation of conflict of interests exists is too indirect and insubstantial to justify a proceeding for a declaration relating to an issue in which he (the applicant) has not shown that he has an interest. The applicant has not shown that he has a real, as opposed to theoretical, question to raise and that he has a real interest to raise it. [see Santos Ltd v American Home Assurance Co. (1986) 127 LSJS 220].

Mr Nelson, for the respondent also argued that the proper remedy to prevent a solicitor continuing to represent his or her client was an order by way of injunction. He implied that that was the only proper remedy. He relied upon Halsbury’s Laws of England, 4^th Edn., Vol..44 para. 133 and the now controversial case of Rakusen v Ellis, Munday and Clarke (1911-1913) All E.R 813. Having read the judgments in that case of Cozens - Hardy M.R. and of Fletcher Moulton and Buckley L.J.J., I do not understand any of their Lordships to be asserting that an injunction is an exclusive remedy. I do not understand Rakusen’s case to be laying down a principle that an injunction is the only proper remedy to prevent a solicitor continuing to represent his or her client. Therefore, I am not persuaded by this argument.

However, Rakusen’s case is authority for the proposition that proceedings (by way of injunction) can be granted as against the new client, who, in this instance, is said to be the defendant in the main proceedings.

Buckley L.J. said (at p.819):

"The jurisdiction is a jurisdiction to restrain the solicitor from giving the new client any assistance against the old client by reason of knowledge acquired as solicitor for the old client. If to insure that result it is shown to be reasonably necessary to restrain the new client from employing (the solicitor), the injunction will be granted, but on no other ground could such an injunction be granted as against the client."

I, therefore, am persuaded by Mr Nelson’s powerful submission to the effect that an application for an injunction, if made, (and, it must be remembered, this was not the relief claimed here) must be made against the client (the defendant in the main proceedings, Malama Masina).

It is neither necessary nor appropriate for me to speculate upon (or decide) the issue of whether the plaintiff in the main proceedings could properly seek an injunction against the solicitor (the respondent).

It is also unnecessary for me to reach any conclusion as to whether the respondent is, in fact, in a situation of conflict of interests. In any event, it would only be in rare circumstances that the Court would need to look behind a senior legal practitioner’s statement to the effect that she is not acting in any position of conflict of interests. In the light of the respondent’s denials that she previously acted for the applicant and/or his wife, I anticipate that the plaintiff in the main proceedings or any other person having locus standi would be hard pressed to prove, first, that "real mischief and real prejudice" would result if the respondent was allowed to continue acting, and, secondly, that the respondent was in such a situation of conflict of interests as to warrant her, as a matter of reasonable necessity, being restrained from acting further for the defendant in the main proceedings (see Midland Bank Trust Co. Ltd. v Hett, Stubbs & Kemp (1978) 3 All E.R. 571 per Oliver J at p.583).

It is not for this Court at this time in this proceeding to reach any concluded view as to the conduct of the respondent as a matter of legal ethics. I can (and should) say, however, that there is nothing before this Court at this time which suggests that anything unethical or improper has occurred or is likely to occur if the respondent remains the solicitor for the defendant in the main proceedings. This Court would, as a general rule, be slow to attribute bias or unethical behaviour to a solicitor who holds a high position in the practising legal profession of Samoa and whose honour and integrity have been beyond imputation.

Mr Petaia, for the applicant, sought to rely upon the Canadian decision of Lukic v Urquhart (1985) 11 DLR (4^th) 638. That case is to be distinguished from the present on its facts. In Lukic’s case a solicitor had acted for both the plaintiff, for whom he continued to act, and the defendant, for whom he had ceased to act. The defendant applied, unsuccessfully, for an order preventing the solicitor from continuing to act. The Ontario High Court of Justice allowed an appeal from that decision. O’Brien J. said (at p.640):

"..... the solicitor might well prejudice the rights of the plaintiff Lukic as against the other defendant Urquhart.

I am satisfied in this case there is a very real appearance of professional impropriety and this is clearly a situation where the solicitor might have received confidential information from the defendant, which could be used against the defendant in these proceedings.

I think it would be difficult for the parties in this lawsuit to have confidence in a just result where the solicitor has been placed in that position and now intends to continue against one of his former clients. I am satisfied the solicitor should be removed from the record."

In the present case the respondent had not acted for both the plaintiff and the defendant in the main proceedings. This is not a situation where the respondent "might have received confidential information" from the plaintiff which could be used against the plaintiff in the main proceedings.

I am not to be understood to be asserting that a solicitor cannot be restrained, whether by injunction or as a consequence of a declaratory order or by some other appropriate form of relief, from acting against a former client. Mr Petaia relied upon the principle that "justice should not only be done but should manifestly and undoubtedly be seen to be done," but that is perhaps another way of asserting that such relief should be granted "where a reasonable observer aware of the relevant facts might apprehend that there is a real possibility that confidential information given by the former client might be used to advance the interests of the new client to the detriment of the former client [see Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FLR 307]. Drummond J. explained in clear terms what is, I think, the modern view of the law (at p.312):

"In recognition of the special position of the solicitor as a fiduciary and of the importance now placed on the need for the appearance of integrity on the part of solicitors, as repositories of confidences, in the role they play in the administration of justice, I think that the stringent approach to when a solicitor will be free to act adverse to the interests of a former client that has been taken in recent cases is preferable to the more lenient approach that was generally, but by no means invariably, adopted in past times. In my opinion, a solicitor is liable to be restrained from acting for a new client against a former client if a reasonable observer, aware of the relevant facts, would think that there was a real, as opposed to a theoretical possibility, that confidential information given to the solicitor by the former client might be used by the solicitor to advance the interests of a new client to the detriment of the old client."

This is not a case where the respondent, as the solicitor, intends to continue against one of her "former clients". It is to be noted that there is neither allegation nor proof that Samoa Realty and Investments was ever one of the respondent’s former clients.

For all these reasons I am satisfied that the applicant lacks the necessary locus standi to seek a declaratory order as sought in this proceeding, and, accordingly, the application is dismissed.

JUSTICE WILSON