Protection of confidential information is fundamental to your relationship with clients, both as a matter of law and as a matter of conduct. This duty continues despite the end of the retainer and even after the death of the client. There are four key issues to consider when deciding whether you can act in a confidentiality situation: • what is material confidential information • what is an adverse interest • what does the common law say about effective safeguards, and • what is informed consent This Practice Note considers material confidential information and adverse interests. For guidance on the other issues, see Practice Notes: Informed consent—law firm confidentiality and Safeguards and information barriers. The duty of confidentiality—SRA requirements You must keep the affairs of clients confidential unless: • disclosure is required or permitted by law, or • the client consents For more guidance on the general duty of confidentiality and the relationship between confidentiality and client conflict under the SRA Standards and Regulations, see Practice Note: Duties of confidentiality and disclosure. If

A decision-maker must take into account all relevant matters, and must ignore irrelevant matters. The weight to be attached to such relevant matters is generally a matter for the decision-maker (R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council at para [70]). ‘Relevant considerations’ are those which the statute conferring the decision-making power either expressly or impliedly requires the decision-maker to take into account. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation at para [228], Lord Greene MR stated: ‘If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters.’ When

For material contribution to be proved, the breach need not be the sole, or even principal, cause of the damage, although it must have materially contributed to it.

PI & Clinical Negligence analysis: The case arose out of the tragic suicide of a patient while receiving in-patient psychiatric care. It was argued on behalf of the deceased’s dependents that the defendant psychiatrist’s negligent treatment materially contributed to his death. In dismissing the appeal, the Court of Appeal confirmed the primacy of the ‘but-for’ test of causation. The doctrine of material contribution is of limited applicability, arising only where the court is unable to determine causation on a ‘but-for’ basis. This is an important reminder to claimants who seek to rely on material contribution in cases where medical science is sufficiently well-developed to address causation in the usual manner. The case also gave rise to an interesting point on the strategic risks of settling against some but not all defendants prior to trial. Written by Martin Porter KC and Paige Mason-Thom, barristers at 2 Temple Gardens.

This Practice Note deals with how the principle of material contribution operates where there are multiple defendants or causes of an injury, the different approach taken by the courts to causation in disease cases and whether the material contribution test can be applied to other personal injury cases when the ‘but for’ test fails. Practical guidance is also provided on how to gather evidence to establish material contribution. The standard test for determining whether the defendant’s breach caused the claimant’s loss is the ‘but for’ test. This test requires the court to consider: but for the breach of the duty by the defendant, would the claimant have sustained the damage? For further guidance, see Practice Note: Causation in personal injury claims. For guidance on causation in clinical negligence cases, see Practice Note: Causation and material contribution in clinical negligence claims. It is only when the ‘but for’ test fails that ‘material contribution’ should be considered. Beyond the ‘but for’ test Causation of an injury is a relative concept, not an absolute one. As

Information which is relevant to a client's matter.

Restructuring & Insolvency analysis: Two creditors challenged a company voluntary arrangement (CVA) on the basis that (1) there had been a material irregularity in relation to the information provided and (2) the CVA was unfairly prejudicial to them. One application succeeded on both grounds. It was held that there was a material irregularity in respect of the position of the parent company (which had guaranteed some of the liabilities of the debtor company, Mizen Design/Build Ltd (‘Mizen’)), claims against which were being compromised within the same CVA. There had been a lack of disclosure in respect of its recent transactions and overall financial circumstances. It was also held that members of the creditor class who benefitted from such guarantees were entitled to a full explanation of how the total amount of their claims had been calculated, and no such explanation had been provided. Further problems included the relative impact of the proposal on that class of creditors. Written by Nora Wannagat, barrister at 9 Stone Buildings.

An official authorisation or regulatory clearance is a material official authorisation or regulatory clearance if the Panel is satisfied that the failure to obtain the authorisation or clearance could give rise to circumstances which are of material significance to the offeror in the context of the offer (see Rule 13.5(a)).

Offence of material omissions from statement relating to company's affairs It is an offence for any present or past officer of a company which is being wound up either by the court or voluntarily, to make any material omission in any statement relating to its affairs. Where a company has been ordered to be wound up by the court or has passed a resolution for a voluntary winding up, a person is deemed to have committed an offence if, prior to the winding up, they have made any material omission relating to the company's affairs in a statement. An 'officer' for the purposes

This Agreement is made on [date] Parties 1 [Insert the company name] a company registered in [England and Wales] under company number [insert registered number] and whose registered office at [insert address] (the Provider); and 2 [Insert the company name] a company registered in [England and Wales] under company number [insert registered number] whose registered office is at [insert address] (the Recipient) (each of the Provider and the Recipient being a party and together the Provider and the Recipient are the parties). Background (A) The Provider has agreed to supply a sample of the Material to the Recipient for the research purposes permitted under this Agreement. (B) [insert any relevant background] The parties agree 1 Definitions and interpretation 1.1 Definitions In this Agreement: Affiliate • means any entity that directly or indirectly controls, is controlled by or is under common control with, another entity; Applicable Laws • means: (a) [Medical Product [Law OR Regulation] and ]any law, statute, regulation, by-law or subordinate legislation in force from time to time, and all subsequent amendments thereto, applicable to a Party or any part of the [insert description of the product or activity to which the agreement relates] in any jurisdiction in which

PI & Clinical Negligence analysis: The court refused a summary judgment application by the defendant, which sought judgment on the basis that a claim for breach of duty to warn a clinical patient of risks could be decided in reference to a reasonable body of medical opinion without a need to consider evidence from (inter alia) the claimant. The court held that evidence from the claimant was necessary to determine whether the risk in question was material, and that the rule in Montgomery v Lanarkshire Health Board in respect of consent to medical risks had not been altered by the judgment in McCulloch v Forth Valley Health Board. In particular, the Bolam test did not apply to the duty to warn a patient of material risks, even if it would apply to the duty to advise a patient as to alternative procedures. The court also struck out a sections of a schedule of loss which claimed substantial sums, in the region of £2.5m for loss of earnings, but which disclosed no basis for claiming damages in that amount. Written by Thomas Mallon, barrister at Henderson Chambers.

To ‘materially distort the economic behaviour’ of an average consumer means to appreciably impair their ability to make an informed decision, thereby causing them to take a transactional decision that they would not have taken otherwise. The impairment must therefore be significant enough to change the decision that the average consumer would make. For example, if the average consumer buys a product they would not have bought otherwise or do not exercise cancellation rights when they would have otherwise done so. A practice that does not affect or is unlikely to affect the economic behaviour of average consumers is therefore unlikely to be unfair under the general prohibition.