Facts: Prince Jefri Bolkiah (youngest brother of Sultan of Brunei) chaired the Brunei Investment Agency (BIA). KPMG for many years audited the accounts of the BIA. In 1996, Prince Jefri retained KPMG to provide litigation support in the “Manoukian litigation” code named “Project Lucy”. The litigation was settled in 1998. The Government of Brunei approached KPMG to undertake an investigation into the BIA in relation to unexplained fund transfers from BIA (code named “Project Gemma”). It was common ground that at least some of the information obtained through Project Lucy was relevant to Project Gemma and that the interest of the BIA is adverse to that of Prince Jefri. Prince Jefri sought an injunction to prevent the KPMG from acting for the BIA on Project Gemma.
Principles: The basis for the Court’s intervention is predicated upon the fact that:
The solicitor is in possession of information which is confidential to the plaintiff/applicant and the plaintiff/applicant has not consented to its disclosure; and
The information or may be relevant to the new a matter in which the interest of the other client is or may be adverse to the plaintiff/applicant’s own interests
The duty to preserve confidentiality survives the termination of the solicitor/client relationship (and exists beyond the termination of the fiduciary relationship).
Held (Lord Millett): Whether founded on contract or equity, the duty to preserve confidentiality is unqualified. It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. ...[T]he court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial.