SOLICITORS CANNOT BE COMPELLED TO HAND OVER FILES: HIGH COURT DECISION

In Hanley v J C & A Solicitors [2018] EWHC 2592 (QB) Mr Justice Soole decided that the court did not have inherent power to compel solicitors to hand over copies of documents to their former clients.

THE CASE

Three claimants sought an order that the defendant solicitors hand over copies of files. Each claimant was a former client of the solicitors and required copies in order to determine whether to seek an assessment of costs which had been taken out of their damages.  The claimants argued that the court had inherent jurisdiction over its officers, or alternatively had power to order delivery under s.68 of the Solicitors Act 1974.

THE JUDGMENT

The judge reviewed the authorities in detail. He dismissed the claimants’ application.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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, 4^th 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?’

10. 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.

11. 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.

12. 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.

13. 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.

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

15. 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.

16. However on the issue of principle and for the reasons given, these appeals must be dismissed. I record my gratitude to Master Haworth for his assistance in sitting with me as an assessor. The content of the judgment is of course my own.