SENIOR COURTS COSTS OFFICE
London, EC4A 1DQ
B e f o r e :
| Mr Ian Hanley
|- and -
|JC & A Solicitors Limited
Mr Dunne (instructed by JC & A Solicitors Limited) for the Defendant
Hearing dates: 6 December 2017
Crown Copyright ©
Background to this case
(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
The following further conditions are applicable to a conditional fee agreement which provides for a success fee—
(a) it must relate to proceedings of a description specified by order made by the Lord Chancellor;
(b) it must state the percentage by which the amount of the fees which would be payable if it were not a conditional fee agreement is to be increased; and
(c)that percentage must not exceed the percentage specified in relation to the description of proceedings to which the agreement relates by order made by the Lord Chancellor.
(a) a written request with the Claimant's signed authority annexed,
(b) a request pursuant to the Data Protection Act 1998 ("DPA") and
(c) a reference to the case of Jonathan Evans v JC&A Solicitors Ltd (unreported; SCCO reference JR1702965) accompanied by an offer of 25p per page based upon Master Rowley's decision in that case.
(a) Sending copy documents with a comment in the covering correspondence that "…there are no further papers…"
(b) Sending a Subject Access Request Report under the DPA enclosing a table containing 'data type' 'data description' and 'documents containing data'
(c) Offering to provide the copy documents over which the Claimant does not have proprietary rights, but for a fee of £644.00, which appears to be 4 hours at £161.00 (Grade C rate) per hour with no VAT, presumably on the basis this is a "self-service" item by Solicitors.
(a) The Claimant found no funding documents, none of the correspondence from the Defendant to the Claimant throughout the retainer and no fee invoices raised throughout the currency of the retainer hence there clearly were further papers despite the Defendant's comment to the contrary
(b) The DPA table was all very well, but the documents described therein were not annexed thereto
(c) Although not actually in the Witness Statement, implicit therein and argued before me at the subsequent telephone Hearing, £644.00 is a disproportionate and unreasonable amount; the Solicitors ought to fillet the file and extract the requested documents and photocopy them for 25p per sheet; that 25p should cover the cost of filleting and copying.
Proceedings in the SCCO
(i) All letters addressed to Claimant
(ii) All Funding documents
(iii) Letter to Elite Insurance
(iv) Letters to Premex Medical
(v) Vetting Questionnaire
The Law – Claimant's submissions
68 Power of court to order solicitor to deliver bill, etc.
(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.
"6.4 The procedure for obtaining an order under Part III of the Solicitors Act 1974 is by a Part 8 claim, as modified by rule 67.3 and Practice Direction 67. Precedent J of the Schedule of Costs Precedents is a model form of claim form. The application must be accompanied by the bill or bills in respect of which assessment is sought, and, if the claim concerns a conditional fee agreement, a copy of that agreement. If the original bill is not available a copy will suffice."
(a) The matter had settled some time (in this case just over two years) ago
(b) The invoice had been delivered up at the point of settlement
(c) The invoice had been paid in full [by deduction from damages] on the point of delivery
(d) That the costs recovered had been billed off and the VAT paid
(e) The party and party costs were subject to the fixed RTA costs regime
(f) Hourly rates were agreed in the obligatory Client Care letter [see below]
(g) The sum to costs inclusive to the 25% contribution to costs was authorised [see below]
(h) The sum authorised in respect of the ATE premium [see below]
The law – My comments
"Should you receive a request from a client to supply them with documents, you will need to consider the ownership of those documents, in particular which belong to the client and which belong to you.
Documents which come into existence during the retainer are in one of two categories:
(a) where the solicitor is acting as professional advisor
(b) where the solicitor is an agent of the client.
The second category is usually correspondence with third parties where the solicitor is sending or receiving correspondence on behalf of the client. On the normal principles of agency, these documents belong to the client.
Where the solicitor is acting as professional advisor, ownership of documents depends on the purpose of the retainer and whether the production of the document was a stipulation of the retainer (see Leicestershire CC v Michael Faraday & Partners  2 KB 205, Chantrey Martin v Martin  2 QB 286 and Gomba Holdings v Minories Finance  BCLC 115).
In consequence documents on the file generally fall into the following categories:
Note that where a document belongs to the client, you may nevertheless be entitled to retain it in circumstances where you can properly exercise a lien in respect of unpaid fees. This also applies to documents which plainly belong to the client because they were created before the retainer and provided to the solicitor by the client.
There is no distinction between hard copy and electronic documents. Whether a document has always existed only in an electronic medium, such as a portable document format file (PDF) stored electronically, or has been scanned into electronic form from an original hard copy, or has always and only existed as a hard copy, it will still be capable of being allocated to one of the categories referred to above.
Remember that the guidance set out above is on the basis that there is no contractual arrangement with the client covering the ownership of documents. Your firm's terms and conditions of business may set out, as a matter of contract, which documents belong to the client and which to the firm. Your terms and conditions may also provide for the circumstances in which you will destroy documents or in which a charge may be made for search, retrieval and return of documents to the client."
The Status Quo as at 2017
"[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…"
Date: Friday, 15 December 2017