Yesterday, Kerr J handed down his decision on an application for summary judgment and strike out in Mex Group Worldwide Limited v (1) Duthie (2) Duthie Consultants Limited [2025] EWHC 1360 (KB). Tom Poole KC and Katharine Bailey (instructed by Bellevue Law Limited) acted for the successful Respondents to the application, Mr Duthie and Duthie Consultants Limited (“DCL”). This is a notable decision concerning the scope of a solicitor’s duty of confidence to his client, and the arguability of defences to a claim in breach of confidence upon the bases of the iniquity exception or a general duty to disclose.
Mex Group Worldwide Limited (“Mex”) is the parent company of MultiBank Group, an international group of companies and major provider of brokerage services for foreign exchange and contracts for different 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 factual background to the dispute is, as the Judge summarised at para [5], ‘complicated and includes serial litigation across several jurisdictions’.
Mex brings a claim in breach of confidence against its former General Counsel, Mr Duthie, and the personal services company through which Mr Duthie provided legal services to Mex at certain times, DCL. Mex say that by filing a witness statement in related proceedings in England & Wales, and by assisting parties adverse to Mex’s interests in those proceedings, Mr Duthie (and DCL) breached duties of confidence to Mex.
Mr Duthie and DCL defend the claim on several grounds, which include: first, that the matters of which Mex complain do not constitute breaches of Mex’s confidence because of the operation of the iniquity exception (recently considered by the Court of Appeal in Al Sadeq v Dechert LLP [2024] EWCA Civ 28); and second, that Mr Duthie (and DCL) had a positive duty to disclose Mex’s wrongdoing.
The majority of the factual material relevant to Mex’s application is not included in the publicly available version of the judgment, since the Court acceded to Mex’s application to sit in private for parts of the hearing (per CPR r.39.2(3)(c)) and for the ‘confidential bundle’ to which reference was repeatedly made during the hearing to be accessible only to the public (i.e., non-parties) upon a successful application to the Court and with prior notice to the parties (per CPR r.5.4C).
The judgment is nonetheless noteworthy for two reasons.
First, Kerr J ruled that the Iniquity Exception constitutes an arguable defence to a claim of breach of confidence by a solicitor (and his personal services company). He held that, at trial, Mr Duthie and DCL may prove on the balance of probabilities that Mex had abused the lawyer-client relationship such that the iniquity exception would deprive some, if not all, of the information disclosed by Mr Duthie (and DCL) of its necessary quality of confidence.
Second, Kerr J also ruled that a positive duty to disclose wrongdoing also amounts to an arguable defence to a claim of breach of confidence by a solicitor (and his personal services company). Kerr J noted ‘[t]he obligations of solicitors in the regulatory sphere are now more developed than they were when old cases such as R v Cox and Railton were decided’ (para [163]).
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