Hanley v JC & A Solicitors Ltd  EWHC B28 (Costs) (19 December 2017)
The Judiciary’s concern in “opening the floodgates” for considerable satellite litigation, if they rule that Solicitors can be Ordered to hand over their complete file in circumstances such as these
This decision of the High Court follows in quick succession, the judgement provided in Green & Ors v SGI Legal LLP (2017) EWHC B27 (Costs), which addressed four separate applications for delivery up of papers. This case was addressed by our very own Gemma Taylor in the following article… Click here to read
Circumstances of the Claim
In respect of Hanley v JC&A Solicitors Ltd, this matter involved an Application by the Claimant who was the successful Claimant in a Road Traffic accident claim which settled on 30 July 2015. The Claimant had brought Part 8 proceedings against his former Solicitors, the Defendant issued by JG Solicitors Limited on 14 November 2017 in the SCCO. The Claimant sought an Order pursuant to section 68 of the Solicitors Act 1974 and/or the inherent jurisdiction of the High Court over Solicitors/s.7(9) Data Protection Act 1998 for:-
(i) Delivery of such parts of the Defendant’s file over which the Claimant has proprietary rights
(ii) Delivery of copies of such other parts of the file over which the Claimant does not have proprietary rights
(iii) The costs arising from this Application to be paid by the Defendant
In November 2017, the Court provided was provided with a witness statement from Mr James Green of JG Solicitors who were the new Solicitors for the Claimant. Mr Green set out the background to the original claim of which were that on 16 June 2013 the Claimant was involved in a road traffic accident and instructed the Defendant to recover damages.
The accident and the CFA were both after 1 April 2013, therefore on account of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the additional liabilities would come out of the Claimant’s damages rather than being recovered from the Defendant.
The claim settled on 30 July 2015 with payment of General Damages of £3,500.00 out of which the Defendant deducted a total of £1,086.25 in respect of a contribution towards its legal fees. The Claimant asserted (in the witness statement) that he had concerns about the amount of money that the Defendant had so deducted, which had not been explained to him and therefore he instructed Mr Green’s firm to obtain a copy of his file of papers in order to advise him in respect of the same.
The Court was initially referred to the The Solicitors Act 1974, section 68(1), which states as follows:
68 Power of court to order solicitor to deliver bill, etc.
- The jurisdiction of the High Court to make orders for the delivery by a solicitor of a bill of costs, and for the delivery up of, or otherwise in relation to, any documents in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the High Court.
In addition the Court were referred to three decisions. The first one was In re Thomson, where the client had dis-instructed her Solicitor and wished to have the originals of letters written to her former Solicitor by third parties, and the copies that he had kept of letters written by him on her behalf, and which he was refusing to hand over. The Master of the Rolls (Romilly MR) held that copies of letters written by the Solicitor and copied in his own letter-book could not be ordered to be given up; they had been made for his own benefit and protection and if the Client (or former Client) wished to have copies of them, she must pay for them. He added that no question had arisen as to letters from the client to her Solicitor, but indicated that his impression was that the Solicitor would be entitled to retain those. As to letters written to the Solicitor by third parties, relating exclusively to her business, he had received those as her Agent and she was entitled to delivery up of these items.
Secondly, the Court considered In re Wheatcroft, where the Solicitor had retained certain original letters written to him by his former Client in connection with the Client’s business, and also copies of his letters to the Applicant in his own letter-book. The Master of the Rolls (Jessell MR) held that the Solicitor was entitled to retain the letters from the client and the copies of the letters in his letter-book, as such letters and copies were his own property.
The Claimant submitted, the finding s were correct in both decisions, however it was open for the Court to otherwise order the Solicitor to deliver up his only copy of these items on condition his former client was prepared to pay for them.
The third case was a Northern Irish case, The Mortgage Business PLC and Bank of Scotland PLC (trading as Birmingham Midshires) v Thomas Taggart and Sons. This was a Northern Irish case and therefore not binding however the Claimant contended it was directly on point to the present case and Court should be persuaded by the “…overwhelmingly cogent…” reasoning of Mr Justice Deeny in that case, in finding that In re Wheatcroft was no bar to the Claimant seeking, not delivery up of the letter book (or for a more modern-day equivalent, of the Solicitor’s database) but of a copy of it, paid for by the Claimant.
Counsel for the Defendant contended that his client had handed over copies of everything that the law as it currently stood requires the firm to hand over, and that what the Claimant in this case (and the unseen hundreds if not thousands of Claimants with similar cases waiting in the wings) was doing was engaging upon a fishing expedition to see if there was anything on the Solicitor’s file that might enable them to launch an Application for Detailed Assessment.
Mr Dunne (Counsel for the Defendant) added that any suggestion that the Claimant was being “kept out” of his right to an Assessment was wrong, whether by reference to PD46 or otherwise because the Claimant had left with his damages, and without a backward glance, two years ago. He was not at all concerned about what the Defendant had done (by deducting its fee contribution from those damages) until JG Solicitors Ltd contacted him as part of a marketing push. Mr Dunne asserted that disproportionate pressure was being applied to firms such as the Defendant with multiple Claim Forms coming from former Clients who had (in reality) no real concerns but had responded to marketing pressure from firms including JG Solicitors Ltd.
The Court’s Decision
Ultimately, the Court found at paragraphs 56 to 57 as follows:-
I am not persuaded that I should Order production of documents that do not belong to the Claimant. Notwithstanding Ms Hynes’ very well-presented arguments, her reliance upon In re Thomson is in my view misplaced. The first paragraph of the (very short) reported Judgment explains why:
“[Mr Thomson] …handed over to the new Solicitors the deeds, books, papers and writings belonging to the Petitioner, except the original letters addressed to and received by him as the Petitioner’s Solicitor…except copies of letters written by him as the Petitioner’s Solicitor, and exclusively relating to her business, which copies had been made by him and had not charged for in his bill of costs. These he declined to deliver up, but he offered to furnish copies…at the expense of the Petitioner. This proposal being unsatisfactory to [the Petitioner], she presented a petition for the delivery up of these…copies…”
Hence there is currently no [binding] decided case in which Solicitors have been Ordered to hand over papers over which they (rather than the Clients) have proprietorial rights. In re Thomson did Order production of copies upon payment of a fee but, crucially, Solicitors had already offered that and the case had gone before the Master of the Rolls solely for a decision upon whether the Client ought to pay for the privilege.
Furthermore at paragraph 58 of the decision, Master James made the following comments:-
…. However, I am also concerned by the floodgates that would likely be opened by a ruling that Solicitors can be Ordered to hand over their complete file in circumstances such as these; such a move would foreseeably instil considerable satellite litigation and I am not persuaded that this would be a positive step, and dismiss the Application accordingly.
As per my colleague Gemma Taylor’s comments in her article “this is a bold and welcome decision for the increasing number of firms subjected to opportunistic attempts at solicitor/own client assessments”. In addition I consider the comments of Mr Dunne, Counsel for the Defendant in this decision to be poignant and appropriate found in this decision. This was a fishing expedition by a Client and their firm of Solicitors. The Claimant had left with his damages, and without a backward glance, two years ago. He was not at all concerned about what the Defendant had done until JG Solicitors Ltd contacted him as part of a marketing push.