SENIOR COURTS COSTS OFFICE
B e f o r e :
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J C & A LIMITED
| PHILIP SWAIN
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|J C & A LIMITED
David Dunne, Counsel, for and instructed by the Defendant
Hearing dates: 14 December 2017
Crown Copyright ©
The parties' contentions
The Defendant Solicitors object to an order requiring him to deliver up or produce the documents asserting that as a matter of law the Claimant is only entitled to such an order if he can establish a proprietary right in them; they assert that he has not done so. They also say that the application is merely a fishing expedition and is disproportionate; they had the right to make deductions from the Claimant's damages and, relying on documents they say were in the client care pack, assert that they complied with the provisions of relevant regulations.
Discussion and decision
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.
"The copies made by the solicitor of letters written by him to third parties, on his 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, he can only have them on the terms of paying for them".
……. 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 plaintiffs as clients instructed the defendant as solicitor. As a general principle it seems to me that the client should be entitled to ask copies of this correspondence, if it has lost the same. It maybe 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 did not. However, this right of a client is qualified by the fact that the originals of the correspondence from the solicitors will have been sent to plaintiffs and the plaintiffs should have retained copies of any of any replies they have gave to the Defendants. They are therefore putting their former solicitor to trouble and expense in completing lacunae or possible lacunae in the plaintiff's' own management of its records and affairs. It seems to me therefore 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 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 it is required in the course of furnishing copies.
 Mr Gowdy resists the approach I have outlined above on the basis of the judgement of Jessel M.R in In Re Wheatcroft (1877) 6 Ch D 97. In that case the applicant, who was the legal personal representative of a deceased estate, had employed Mr Wheatcroft as a solicitor in business connected the administration of the testator's estate until October 1876 when she ceased to employ him, paid him his bill of costs, and transferred the business to other solicitors, to whom Wheatcroft handed over the deeds, books, papers and writings relating to the same business. The question arose whether Wheatcroft was entitled to obtain certain original letters written to him by the applicant in connection with the business, and also copies of his own letters in his own letter book. In a splendidly succinct judgement Jessel M.R. held that the solicitor was entitled "to retain letters from the client and copies of his own letters in his letterbox as such letters and copies were his own property". I respectfully accept the decision of Jessel M.R. but I do not think it assists the defendant here. The solicitor's own letter book would indeed be his own property. As the very word implies it would consist of the letters that are coming to him, presumably in any particular case, and copies of his replies. In the unhappy event of any legal dispute it might be of assistance to have the physical letter book show that a reply was written to a particular letter 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 should be entitled to retain such originals; likewise with original copies if they exist although in this day and age they mainly only exist electronically. Wheatcroft does not seem to me good authority against the former client having access to copies of the correspondence and I so rule.