Marks and Spencer Group Plc & Anor v Freshfields Bruckhaus Deringer

Marks and Spencer Group Plc & Anor v Freshfields Bruckhaus Deringer

There was a real risk of conflict of interest and breach of confidence due to Freshfields' prior work for Marks and Spencer, particularly regarding the Davies contractual arrangements, and the proposed Chinese Walls and undertakings were insufficient to address these risks. The principles from Bolkiah apply beyond 'same transaction' cases. The application for permission to appeal was refused as there was no prospect of a different outcome.

Parties
Proposed Respondent: Marks and Spencer Group Plc; Proposed Respondent: Marks and Spencer Plc; Applicant: Freshfields Bruckhaus Deringer
Jurisdiction
England and Wales
Judgment Date
03 June 2004
Procedural Posture
Civil Appeal / Application for Permission to Appeal (with Appeal to Follow If Granted)
Outcome
Application dismissed with costs
Legal Topics
Solicitor Client Relationship, Chinese Walls, Takeover Bids, Breach of Confidence
Professional Conduct Conflict of Interest Confidentiality Solicitor Client Relationship Chinese Walls Takeover Bids Breach of Confidence

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Parties

Marks and Spencer Group Plc

Proposed Respondent

Marks and Spencer Plc

Proposed Respondent

Freshfields Bruckhaus Deringer

Applicant

Procedural Posture

Civil Appeal / Application for Permission to Appeal (with Appeal to Follow If Granted)

Legal Issues

  1. 1 Whether Freshfields Bruckhaus Deringer should be restrained from acting for a consortium bidding for Marks and Spencer due to conflict of interest and possession of confidential information
  2. 2 Whether Chinese Walls and undertakings are sufficient to prevent misuse of confidential information

Ratio Decidendi

There was a real risk of conflict of interest and breach of confidence due to Freshfields' prior work for Marks and Spencer, particularly regarding the Davies contractual arrangements, and the proposed Chinese Walls and undertakings were insufficient to address these risks. The principles from Bolkiah apply beyond 'same transaction' cases. The application for permission to appeal was refused as there was no prospect of a different outcome.

Court Disposition

Application dismissed with costs

Orders

  • Freshfields Bruckhaus Deringer restrained from acting for or advising the consortium in connection with any acquisition of Marks and Spencer
  • Costs awarded to Marks and Spencer