BENMAC MANUFACTURING CO (PVT) LTD v ANGELIQUE ENTERPRISES (PVT) LTD 1988 (2) ZLR 52 (HC)

Flynote

Legal practitioner — ethics — conflict of interest — practitioner acting for opposing parties — propriety and desirability of such a course — application for order that practitioner withdraw because of conflict of interest — powers of court.

Costs — de bonis propriis — legal practitioner negligently misinforming client, resulting in unnecessary application — wasted costs borne by the practitioner.

Headnote

The managing director of the defendant company, during the course of the trial between the two parties, approached the Court with a request that counsel for the plaintiff be directed to withdraw as the plaintiff's representative, as counsel had previously represented the defendant in another matter and had thereby acquired confidential and privileged information relevant to the present matter. The defendant had been involved in a dispute with another company and counsel had been approached to accept a general retainer for the defendant. He had declined, but when approached again accepted, when assured that the two cases were unrelated, and subject to the qualification that he would continue to act for the plaintiff in the present matter. The defendant's legal practitioner failed to convey counsel's qualification to the defendant's managing director, who initially approached the Law Society and later the Ombudsman and the Ministry of Justice for relief.

Plaintiff's counsel argued not only that he had not acted unethically but that the court would not be empowered to require him to withdraw from the case.

Held, that all legal practitioners are officers of the Court, over whom the Court exercises a jurisdiction to see that practitioners display a very high standard of conduct towards their clients.

Held, further, that it is the Court which must in the long run decide whether the conduct in question is unethical, either as prescribed by statute or as a matter of common law as interpreted and expanded by the courts.

Held, further, that there is nothing inherently improper in a legal practitioner representing opposing parties in different matters, provided that no conflict of interests arises in any matter. The onus rested on the defendant in this case to establish that (a) counsel became acquainted with information that could be used to the defendant's disadvantage; and (b) real mischief and real prejudice would in all probability result if counsel were allowed to continue to act. In this case, the allegations made by the defendant were not established.

Held, further, that the existing practices and safeguards employed by practitioners are inadequate, and that it is undesirable that any practitioner should put himself in a position where he may find himself acting both for and against a client in the same or different matters. The only exception to this general rule should be in the most unusual of cases in which the parties themselves have expressly and in writing fully, freely and understandingly consented to that course. It would be a concomitant requirement that full disclosure of the practitioner's role and the possible implications should be made before such a consent is even mooted.

Held, further, that on the information supplied to him the defendant's managing director was justified in pursuing this application. However, that the application was made at all was due to the negligence of his legal practitioner, who should bear the wasted costs de bonis propriis.