Court finds no factual basis for alleged risk of misuse of confidential information
The Court of Appeal has declined an application for leave to appeal an interlocutory Employment Court decision that allowed a lawyer and his firm to continue acting for an employer in an employment dispute.
In late 2024, the applicant in Chevalier v Necta NZ Limited [2026] NZCA 376 approached a law firm for legal assistance in an employment dispute with his employer. On 11 December 2024, the applicant emailed the firm’s receptionist and provided access to a Google Drive folder containing documents relating to the dispute, including draft pleadings and case notes that the applicant said contained litigation strategy.
A legal assistant later spoke with the applicant and told the applicant that a retainer was required to secure the services of a litigation lawyer at the firm. The applicant did not pay the retainer, and the firm told the applicant that it could not assist at that time.
The applicant contacted the firm again on 6 January 2025. The applicant provided a redacted copy of the email to the Employment Court and said it identified key issues in the dispute and available evidence. The firm again told the applicant that it did not have capacity to act.
On 29 August 2025, the employer notified the applicant that it had changed solicitors and that the same lawyer whom the applicant had previously approached would now act for the employer.
The applicant then sought to prevent the lawyer and firm from acting, relying on confidential information that the applicant said had been provided to the firm.
The Employment Court declined the application. It focused on the absence of a solicitor-client relationship and found that the rule governing lawyers acting against former clients did not extend to prospective clients where the lawyer had not accepted instructions.
The Employment Court also accepted assurances that neither the lawyer nor anyone else at the firm had accessed the Google Drive folder. The firm had established an information barrier to prevent access.
The Court of Appeal agreed that the correct test for a confidentiality-based restraining application asks whether a real risk exists that the information will be misused. However, it found no factual foundation for such a risk because the Employment Court was entitled to find that neither the lawyer nor anyone else at the firm had accessed the Google Drive folder or taken note of the information the applicant said he had provided in confidence.
The applicant also relied on the rule governing duties of confidence arising outside a lawyer-client relationship. The court said that, even if that rule applied, it formed only part of the overall assessment of whether a court should prevent counsel from acting.
The court rejected the applicant’s remaining arguments concerning the information barrier, exceptional circumstances, the assurances provided to the Employment Court and the integrity of the proceedings.
The court concluded that none of the proposed questions of law satisfied the requirements for leave under s. 214(3) of the Employment Relations Act. It therefore declined the application and ordered the applicant to pay costs.
