Autumn leaves

I have returned home after six days of rain in Cornwall followed by a seventh day of gales to speed me on my way, feeling in need of a holiday in order to recover from the one that I have just had. As always, there is a thick pile of material that has arrived in my absence, to read, ponder and then advise upon, as efficiently as I can.

Today I have been considering the vexed question as to whether solicitors need to give disclosure of their files to former clients who have mislaid their own copies of documents or indeed who seek copies of documents that they may never have had. Often the disclosure is sought in order to commence litigation against the former solicitors, such as a solicitor-own client assessment under section 70 of the Solicitors Act 1974.

The starting point one would assume, is that as in other contexts where a principal employs an agent, one would have thought that implied into the contractual relationship is an obligation to produce documents created during the relationship, to the client upon payment of a reasonable fee.

But matters are not so simple in the relationship of solicitor-and-former client.

The leading authority at the current time is that of Hanley v JC & A Solicitors and another [2018] EWHC 2592 (QB) which as a decision of a High Court judge (Mr Justice Soole) given on appeal is binding upon lower courts absent some later decision of the Court of Appeal, which might upset its ratio. The issue in the conjoined appeals was framed succinctly by the judge in the following terms:

1. The issue in these appeals is whether the Court, under the inherent jurisdiction over its officers and/or s. 68 Solicitors Act 1974, has the power to order a solicitor to make
and supply to his client (or former client) copies of documents which are the property of the solicitor, subject to payment of reasonable costs for the task.

The claim forms which had been issued sought the following relief:

9. By Claim Forms respectively issued 14 and 12 November 2017 in each action, the appellants sought ‘… an Order pursuant to s.68 Solicitors Act 1974 and/or the inherent jurisdiction of the High Court over solicitors/ s.7(9) Data Protection Act 1998 for – 1. Delivery of such parts of the Defendant’s file over which the Claimant has proprietary rights, and 2. Delivery of copies of such other parts of the file over which the Claimant does not have proprietary rights. 3. The costs arising from this application to be paid by the Defendant.’

10. In each case the attached ‘Details of Claim’ claimed entitlement (‘subject to reasonable copying charges’) to copies of documents in a number of listed categories to which they asserted no proprietary right. They comprised ‘(i) Any electronic communications; (ii) Letters written by the Claimant to the Defendant; (iii) File copies of letters written by the Defendant to the Claimant; (iv) File copies of letters written by the Defendant to third parties; (v) Documents sent by the Claimant to the Defendant during the retainer, the property in which was intended at the date of despatch to pass from the Claimant to the Defendant; (vi) Attendance notes, working notes, diary notes that were prepared for the benefit and protection of the Defendant; (vii) Timesheets, accounts documents, invoices (including a cash account) sent to the Claimant;’ and documents claimed pursuant to the Data Protection Act 1988.

It will be noted that no claim was made under the Senior Courts Act 1981 for pre-action disclosure or asserting that an implied term of the contract of retainer required production of the solicitors files.  At the various hearings, no claim was pursued under the Data Protection Act 1998.

Instead the focus of the argument was on the court’s power to order delivery up of documents under section 68 of the Solicitors Act or the inherent jurisdiction, but the problem this argument soon encountered, was that although the court can and will order delivery up from one party, of documents belonging to another that pre-supposes a proprietary right exists, in respect of which a remedy may be granted. A remedy must have a cause of action, and the two cannot be elided together.

The judgment then recorded an exhaustive trawl through various authorities, including some from the nineteenth century and others which were of only tangential significance. In the event the High Court was unpersuaded that the appellants were entitled to the relief sought, for the following reasons.

60. In my judgment the Court has no jurisdiction to make orders under the inherent jurisdiction and/or s.68 in respect of documents which are the property of the solicitor.

61. First, as a matter of principle, an order for delivery up or otherwise in relation to property belonging to another must have an explicit legal basis.

62. Secondly, the powers referred to in s.68 are derived from the inherent jurisdiction, not the statute itself. The section simply extends the reach of the jurisdiction to cases in which no business has been done in the High Court. It reflects, with immaterial amendments, the provisions of successive statutes governing solicitors. Thus the scope of the jurisdiction is to be identified from authority, rather than interpretation of the statutory language.

63. Thirdly, the decisions relied on by the appellants in my judgment provide no authority for their central proposition that the Court has a discretion under the inherent jurisdiction to order delivery up or make other orders in respect of documents which belong to the solicitor. I will deal with these in turn.

64. As to Horsfall and Holdsworth, in neither case was the disputed document the property of the solicitor. On the contrary, in each case the application succeeded because the client had paid for its preparation : see also Chantrey Martin at p.293.

65. As to Thompson, the underlying fact was that Mr Thompson had offered to supply copies of his documents on terms as to payment. That offer was unacceptable to Mrs Lowe. Asserting ownership in each of the two disputed categories, she claimed delivery up as of right. The issue was therefore whether the documents belonged to the client or the solicitor. The Court held that one category belonged to the solicitor, the other to the client. In consequence the client was entitled only to the latter. As to the former, in stating ‘If therefore the client requires copies she can only have them on the terms of paying for them’ the Master of the Rolls was simply referring back to the solicitor’s offer to supply copies on such terms. He was not stating that there was jurisdiction to compel him to make and deliver copies of his documents upon the client’s undertaking to pay for them.

66. As to Wheatcroft, Counsel for the solicitor resisted the application on the basis that the documents were the property of the solicitor, and the authority of Thompson. Brief as is the report, the Master of the Rolls evidently rejected the application on that basis. The solicitor was entitled to retain the documents as of right. The absence of any application for an order for copies to be made and supplied at the client’s expense must have reflected the correct understanding of Counsel for the applicant and the Court that the exercise of the jurisdiction was dependent on the issue of ownership. It provided no authority for a wider jurisdiction.

67. I do not accept that these authorities are merely reflective of an age when copying was a major task, nor that the decision in Wheatcroft is authority only for the protection of the solicitor’s only record of documents. If the document and its contents are the solicitor’s property which he is entitled to retain, there is no basis for circumvention of that proprietary right by some other form of order.

68. The importance of ownership is further confirmed by the decisions of the Court of Appeal in Leicestershire CC and Chantrey Martin. The distinction between the categories of documents which belong to the client and to the professional is long established : see in both cases the citation with approval of London School Board v. Northcroft (1889) Hudson’s Building Contracts, 4th ed., vol. ii., p.147. In its generality, the distinction applies also to solicitors : see Chantrey Martin at p.293. These decisions are rightly relied on by the Law Society in its Practice Note ‘Who owns the file?’

69. As to Crocker the present issue did not arise because there was no assertion by the respondent solicitors that the documents were their property. This doubtless explains the absence of  citation of Thompson or Wheatcroft. In my judgment the decision is confined to its particular circumstances, including the policy terms.

70. As to Richards Butler, Hart J’s brisk dismissal of the s.68 application was rightly founded on the issue of ownership; and is supported by the earlier authorities.

71. Fourthly, the critical requirement of ownership cannot be overcome by reference to the language of s.68; the overall purpose of Part III of the Solicitors Act 1974; analogy with CPR 31.16 or with the Court’s powers on a s.70 application or with the rationale of the required ingredients of a statute bill; or the requirements of PD46 para 6.4. The inherent jurisdiction does not provide a form of pre-action disclosure of documents belonging to the solicitor.

72. It follows that I respectfully disagree with the decisions of Deeny J in Taggart and of Master Brown in Swain to the contrary effect; and thus with the proposition in the Law Society’s letter of 28 June 2018 that there is a discretionary power under the inherent jurisdiction in respect of copies of documents belonging to the solicitor.

73. In reaching this conclusion on the appeals, I readily acknowledge the practical considerations and implications identified by the Court in Taggart and Swain. However I do not think that these can defeat the principle of ownership.

The court however went on to say, with a cautionary note, that solicitors may yet be penalised in costs if refusal to provide documents caused the issue of proceedings for a section 70 assessment, which proved unsuccessful:

74. All that said, it does not follow that solicitors should in all circumstances press their legal rights to the limit, nor that they can necessarily do so with impunity. To take one example, a refusal to comply with a former client’s request for a copy of a mislaid CFA (made on an undertaking to pay a reasonable copying charge) so that advice may be obtained on the prospects of a s.70 application, would surely entitle the client to issue such an application notwithstanding the inability to comply with the procedural requirement in PD46 para. 6.4; and could have potential adverse costs implications for the solicitors within those proceedings, whatever their result.

The judgment led some little while later to a revision of the well known Practice Note, Who Owns the File? published by the Law Society which can be accessed here:

https://www.lawsociety.org.uk/support-services/advice/practice-notes/who-owns-the-file/

and which is usually the first port of call, when considering which parts of a file, belong to the client and which can properly be said, to belong to the solicitor.

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