England and Wales High Court (Senior Courts Costs Office) Decisions

IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

		Thomas Moore Building Royal Courts of Justice Strand, London WC2A 2LL
		18/12/2017

Master Leonard:

1. This judgment addresses four separate Part 8 applications for delivery up of papers, made under section 68(1) of the Solicitors Act 1974 by four former clients of the Respondent. I am grateful to Ms Hynes, counsel for the Claimants, and Mr Marven, counsel for the Defendant, for their clear and comprehensive submissions. I should mention that in the interests of economy I will not make specific reference to some non-binding decisions to which I have been referred but which do not seem to me, following review, to go directly to the matters in issue.
2. It is common ground that in all four cases, the application was issued some months after the Defendant supplied, in accordance with published Law Society guidance, all of the documents which belong to each Claimant. The Defendant however refused to supply to the Claimants copies of documents which belong to the Defendant. The Claimants now seek an order for delivery of copies of certain of those documents in return for payment to the Defendants of the reasonable costs of providing them. That is quantified by the Claimants at 15p per copy.
3. The SCCO has, over the last year or so, received an increasing number of such applications. For that reason, I propose to address the issues in some detail in the hope that doing so may help to reduce the scope of future disputes.
4. I have before me evidence incorporating the correspondence passing between the solicitors representing each of the Claimants, JG Solicitors ("JG") and the Defendants, from initial contact to the making of these applications. Ms Hynes confirmed in submissions that the approach taken and the issues raised by the parties from time to time in each case were, in all material respects, the same. A brief summary of the relevant history of one application will accordingly serve to illustrate the issues arising in all four. Ms Hynes chose the case of the first Claimant named above, Mr Mark Green, and I will do the same.
5. On 15 May 2017, JG sent to the Defendant by email a letter, accompanied by a form of authority signed by Mr Green, requesting under the provisions of section 68(1) of the Solicitors Act 1974 a complete copy of the Defendant's file relating to Mr Green. The stated reason for the request was that Mr Green had instructed JG to advise upon the viability of a "solicitor/own client assessment of your legal bill pursuant to Section 70 of the Solicitors Act".
6. Under the heading "documents required" the letter said:

"For the purpose of clarification, we require sight of ALL documents relating to your former client's claim. These include, but are not limited to…"

7. There followed a list of categories, including all funding documents; all correspondence between the Defendant and the Claimant; all correspondence between the Defendant and other parties; all telephone notes, file notes, attendance notes or internal memoranda created in relation to the claim; all correspondence relating to settlement of legal costs; any invoices created, whether or not delivered; and a copy of the office and client account ledgers.
8. Under the heading "Method of Transmission" the letter continued:

"We understand that you have been paid in full for the work that you have done for your former client, and therefore he is entitled to take possession of his original papers without being charged..."

9. The letter requested receipt of the documents within seven days, or at the very latest by 4 p.m. within 14 days, failing which

"…we are instructed to make an application to court pursuant to Section 68 (1) of the Solicitors Act 1974 for an order to compel you to provide the papers requested".

10. Following an agreed extension, the Defendant sent to JG by email a letter dated 8 June 2017 enclosing all those documents to which the Defendant considered Mr Green to be entitled. The letter methodically distinguished between those documents to which the Claimant, in the Defendant's view, was and was not entitled. As I have said, it is common ground that the documents enclosed did comprise a full set of the documents the property of Mr Green, to which he was entitled as of right.
11. In a response dated 15 June, JG requested a copy of the rest of the Defendant's file. Their request listed the same categories of documents but this time was said to be made under the Data Protection Act 1998 ("DPA"), on the basis that Mr Green would pay the statutory maximum fee of £10. It was accompanied by a form headed "Data Subject Access Request" signed by Mr Green.
12. JG followed this on 11 July with a separate letter, making no reference to their letter of 15 June or to the DPA, but again requesting that the Defendant supply a copy of the entire file:

"… It is necessary for us to view the file in its entirety in order to advise him adequately… You are refusing to provide vital parts of the file to us on the basis that the originals of documents have already been sent to your former client and that the copies of those documents belong to you… We do not dispute the fact that these copies belong to you. However, we are willing to pay reasonable copying charges for those papers in the file that do not "belong" to your former client…".

13. The Defendant responded on 18 July requesting clarification of the basis upon which copies were requested (whether under the DPA or the Solicitors Act 1974) and, if the request was made under the1974 Act, JG's reasoning as to why the Defendant's previous response was considered to be insufficient. JG replied on 19 July to the effect that an adequate explanation already been given, that the only apparent purpose of refusing further copies was to prevent Mr Green from exercising a statutory right to seek assessment, and that any application would be made under the 1974 Act.
14. Following a further request for clarification JG confirmed that the request for delivery of papers was restricted to the 1974 Act but they declined to withdraw the request under the DPA. Ultimately the Defendants responded to the DPA request without providing copies of any further documents, which they say (and on the material before me, I tend to agree) is not required by the DPA.
15. The four applications before me were filed with the SCCO on 12 November 2017. Each claims "delivery of such parts of the Defendant's file over which the Claimant has proprietary rights" (which had in fact been supplied) and "delivery of copies of such other parts of the file over which the Claimant does not have proprietary rights".
16. The latter are listed in each Part 8 application as any electronic communications; letters written by the Claimant to the Defendant; file copies of letters written by the Defendant to the Claimant; file copies of letters written by the Defendant to third parties; documents sent by the Claimant to the Defendant during the retainer, the property which was intended at the date of dispatch to pass from the Claimant to the Defendant; attendance notes, working notes and diary notes prepared "for the benefit and protection" of the Defendant; timesheets, accounts documents, invoices (including a cash account) sent to the Claimant and "any other information or documentation retained or created by the Defendant during the currency of the retainer to which the Claimant is entitled under the Data Protection Act 1988, having regard in particular to s 35 of the Act."
17. Before me, Ms Hynes made it clear that the Claimants now limit their applications to copies of funding documents; copies of all correspondence sent to the Claimants; and copies of all invoices created during the currency of the retainer. Although the witness statement of Mr James Green of JG, filed in support of the application a week before the hearing, referred only to those categories of documents as "outstanding", counsel's confirmation at the hearing of the application appears to have been the first clear intimation from the Claimants that the scope of their application had been so substantially reduced.
18. Ms Hynes also confirmed that the Claimants do not pursue that part of the application which is made by reference to the DPA.
19. Turning to section 68 of the Solicitors Act 1974, the Claimants refer me to the wording of subsection (1):

"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".

20. Whilst it is agreed that that section does not purport to extend the court's inherent jurisdiction, the Claimants submit that the words "… The delivery up of, or otherwise in relation to, any documents…" make it clear that that jurisdiction is a wide one. The court's powers, they say, extend to ordering the delivery of copies of documents which are not the property of the Claimants, on payment of reasonable copying costs.
21. In that respect the Claimants refer me to three judgments. The first is that of Sir John Romilly MR in Re Thomson (1855) 20 Beav 545, in which the court refused an application by a former client for copies of letters written by the solicitor and "copied in his own letter book", observing that the client wanted copies of them she must pay for them. The second is Re Wheatcroft (1877) 6 ChD 97, in which the court refused a similar application, holding "that the solicitor was entitled to retain the letter from the client and the copies of his own letters in the letter-book, as such letters and copies were his own property". Ms Hynes points out that in coming to that conclusion, Sir George Jessell MR clearly considered Re Thomson and did not depart from it.
22. The Claimants also refer to a judgment of Deeny J in the High Court of Justice in Northern Ireland. That is not of course binding on me, but the Claimants argue that it is persuasive and should be followed. The case is Mortgage Business plc and Bank of Scotland plc v Thomas Taggart and Sons [2014]. The plaintiffs were lenders who had advanced money on the security of a number of properties and were concerned that the solicitors who acted for them and for the borrowers on the transaction might not have discharged all their legal duties. They wanted to investigate the possibility of making a claim against them, and to that end they sought documents from the solicitors' files.
23. In relation to copies of correspondence previously sent by the defendant solicitors to the plaintiffs, Deeny J entirely accepted the principle succinctly summarised in Re Wheatcroft but ordered nonetheless that the plaintiffs' former solicitors provide, in return for payment of the cost of doing so, copies of documents to which the plaintiffs were not entitled by right of ownership. He explained his reasoning at paragraphs 6 and 7 of his judgment:

"The exchange of correspondence between the parties to these proceedings is of its essence not confidential between the two parties. They came into existence because the plaintiffs as clients instructed the defendant as solicitor. As a general principle it seems to me that the client should be entitled to ask for copies of this correspondence, if it has lost the same. It may be that that is also the case if it is unsure if it has a full set of correspondence. It could therefore ask to inspect the correspondence file and take copies of any correspondence which it did not have. However, this right as a client is qualified by the fact that the originals of the correspondence from the solicitor will have been sent to the plaintiffs and the plaintiffs should have retained copies of any replies they gave to the defendants. They are therefore putting the former solicitor to trouble and expense in completing lacunae or possible lacunae in the plaintiffs' own management of its records and affairs. It seems to me therefore that the plaintiffs, if they aver that their own files are believed to be incomplete, are entitled to see and copy these but would have to pay the professional fees of a solicitor to the extent that a solicitor has to spend time checking the files and of clerical assistance to the extent to which that is required in the course of furnishing copies.

…I can well see that that book would remain the property of the solicitor. But that does not preclude the plaintiff whose records are incomplete from asking to have copies of the correspondence with his former solicitor, subject to paying the necessary costs involved. In case there is a dispute about the authenticity of an original letter from the plaintiffs to the defendant the defendant should be entitled to retain such originals; likewise with original copies if they exist although in this day and age they may only exist electronically. But Wheatcroft does not seem to me good authority against the former client having access to copies of the correspondence and I so rule".

24. He had (albeit in relation to a different category of documents) this to say about the costs to be paid for copies:

"I consider that a solicitor is entitled to charge his normal professional fees for going through the files and selecting what is to be disclosed on foot of this Order. He is also entitled to charge for his secretary's time in photocopying any materials that are sent and for the postage or delivery costs..."

Conclusions

25. The Defendant relies upon Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205 in which the plaintiff sought, from a firm of rating valuers previously instructed by it, delivery up (according to the headnote) of "all documents, books, maps, and plans which had been prepared by, or had come into the possession of, the defendant valuers in the course of, or for the purpose of, the performance of their duties".
26. On the assumption that during the five years during which the defendant had been employed by the plaintiff, all of the documents which it was the defendant's duty to prepare and forward to the plaintiffs had been duly prepared and furnished, the Court of Appeal noted that what was left were

"… the memoranda, notes on scraps of paper, and various other things that may have come into existence, jotted down perhaps in a notebook by the man who carried out the duty of inspecting a hereditament and making up his mind about its valuation…"

27. The court found that those documents were owned by the defendant, not the plaintiffs, who had no right to them. Goddard LJ, at page 217, observed:

"There is no claim against professional men for the documents which they prepare to enable them to carry out the work which they are employed to do."

28. In common with Re Wheatcroft, the judgment of the court in Leicestershire County Council v Michael Faraday turned upon the important distinction between the property of a professional adviser and the property of a former client. Those judgments turn on proprietary rights, not on confidentiality or anything specific to a solicitor/client relationship.
29. Bearing that in mind it seems to me that it is for the Claimants to show that they are entitled, as of right, to receive copies of another person's property, even on agreeing to pay the proper cost of supplying it.
30. If one person writes a letter to another, keeping a copy, it is not self-evident that that the recipient can require another copy on demand, even on agreeing to pay for it. The mere fact that the Defendants were formerly the Claimants' solicitors does not seem to me to change that. Nor does the fact that such letters are, by definition, not confidential as between the parties. To that extent I must respectfully disagree with the approach taken by Deeny J. The question is to my mind not whether there is authority to the effect that the Claimants are not entitled to receive copies of the Defendant's property, but whether there is authority to the effect that they are.
31. It seems to me that Re Thompson does not provide such authority, because in that case the solicitor had at the outset offered, on payment of a proper charge, to furnish copies of the documents that remained his property. That was not satisfactory to the client, who insisted upon delivery up. According to the report before me, the Master of the Rolls said, "in substance":

"the copies made by the solicitor of letters written by him to third parties, and this client's business, were made for his own benefit and protection, and were neither charged for by him, nor paid for by his client. If therefore the client requires copies, she can only have them on the terms of paying for them."

32. In short, the Master of the Rolls observed that if the client wanted copies of the letters that remained the property of her former solicitor, she would have to obtain them on the solicitor's offered terms. Whether the solicitor was obliged to offer copies in return for payment was never in issue, and the court made no finding on it.
33. Ms Hynes concedes, on the authority of Leicestershire County Council v Michael Faraday, that the Claimants have no right to require that the Defendants supply, for example, copies of file notes or ledger entries that remain their property, on payment or otherwise. She distinguishes this case by reference to the fact that the Claimants have now limited their claim to copies of three categories of documents all of which, she would say, were created for their benefit. To refuse to supply further copies of them is, she argues, contrary to their purpose. Hence (as I understand her argument) the conclusion of Deeny J that as a matter of principle a former client should, on agreeing to pay for them, be entitled to copies of such documents.
34. In support of her argument Ms Hynes referred me to CPR Practice Direction 46, which deals with solicitor/client assessments, and in particular paragraph 6.4. That paragraph provides that an application for detailed assessment of a solicitor's bill to a client must be accompanied by the bill or bills in respect of which assessment is sought (or failing that, a copy) and if the claim concerns a conditional fee agreement, a copy of that agreement.
35. Ms Hynes submits that it is consistent with the purpose of the supporting documents required by the Practice Direction that a client who wishes to make such an application but does not have a copy of them should be to obtain them from the solicitor on agreeing to pay the reasonable cost of providing them. Otherwise the client's statutory right to apply for assessment may be defeated. On the same principle the client should, on payment of reasonable costs, obtain a copy of the solicitor's entire file. Otherwise it is not possible to obtain adequate advice on whether to apply for a detailed assessment.
36. I am unable to agree. The purpose of creating documents for the client's benefit is fulfilled when those documents are given to the client. Supplying extra copies is another matter.
37. A client who wishes to challenge a solicitor's charges, but who has nonetheless lost or destroyed the key documents upon which that challenge is based, will obviously be at a disadvantage. It does not follow that the solicitor has any obligation to compensate for that. Nor will a client's inability to supply the required documents with an application for detailed assessment in itself invalidate the application. CPR 3.10 makes that clear, and a Practice Direction, whilst important, is not a rule. The court has a degree of discretion, to be exercised in accordance with the overriding objective. In practice such problems do arise, and they can generally be managed.
38. The suggestion that the client should be entitled to copies of the Defendant's entire file in order to obtain advice on applying for detailed assessment is consistent with the line taken by the Claimants prior to the hearing of the application, but is fatally undermined by their concession (to my mind both proper and correct) that they are not so entitled.
39. The proposition is in any event inconsistent with settled law as to what a client needs in order to consider whether to challenge a solicitor's bill. Ralph Hume Garry (a firm) v Gwillim [2002] EWCA Civ 1500 established that a bill delivered by a solicitor must (judged in the context of the information already known to the client) contain sufficient information to allow the client to understand what is being charged for and whether it would be appropriate to take advice about challenging it. If the bill does not meet that standard, it will not be compliant with the 1974 Act. It will be unenforceable, and the statutory time limits within which the client must apply for detailed assessment will not start to run. That does not fit with the proposition that there is any additional need for, or right to, copies from the solicitor's file.
40. I am also of the view that the Claimants' claim to a freestanding right to obtain copies of the Defendant's property does not sit easily with the pre-action disclosure provisions at CPR 31.16. That rule provides a mechanism by which likely parties to subsequent proceedings can obtain disclosure of documents provided that certain specified criteria are fulfilled. The Claimants' argument, to my mind, attempts to bypass the provisions of CPR 31.16.
41. Finally, bearing in mind that the application has been narrowed down to incorporate only copies of documents which in the normal course of dealings will already have been supplied to the Claimants, I do have concerns about the fact that I have seen no evidence that any consideration has been given as to the extent to which those documents are already in the Claimants' possession.
42. It is not an answer to that to say, as Ms Hynes suggests, that this may just result in the Claimants offering to pay for documents which they do not need. Even if the 15p per copy offered by the Claimants were demonstrably adequate to compensate the Defendants along the lines envisaged by Deeny J (and I have seen nothing to substantiate that) the Claimants' case is based upon the proposition that they do need the documents. It does not seem to me to be appropriate that the parties should incur substantial costs on a demand for documents where that need has not been properly considered and clearly established.
43. For all the above reasons, the application is dismissed.