THE SOLICITOR’S DUTY TO REVIEW THE DOCUMENTS IN LITIGATION: AN INTERESTING POSTSCRIPT

There is an interesting postcript to the judgment of  Jon Turner Q.C. (sitting as a Deputy High Court Judge) in Square Global Ltd v Leonard [2020] EWHC 1008 (QB.

It is fundamental that the client must not make the selection of which documents are relevant

THE CASE

The claimant brought an action alleging breach of  restrictive covenants relating to the defendant’s employment.   The action was successful.

THE POSTSCRIPT TO THE JUDGMENT: THE SOLICITOR’S DUTY ON DISCLOSURE

There is an interesting postscript to the judgment, relating to failures of disclosure.

    1. At trial, Square complained strongly that Mr. Leonard had been remiss in complying diligently with his disclosure duties. In particular, Square complained that Mr. Leonard initially disclosed only three emails passing between himself and Market Securities at the end of January 2020 (the first occasion that Market Securities’ identity was made known). Square complained that Mr. Leonard also only gave disclosure of the cover emails at that point, and not the important attachments (including the detailed draft contract and side letter sent to Mr. Leonard in March 2019). This prevented Square’s advisers from being able to see, for example, whether there were offers made by Market Securities which were capable of acceptance. When this was challenged, Mr. Leonard responded that there were no other written communications exchanged, beyond what had been disclosed. It was only on 27 February 2020 that Mr. Leonard disclosed the attachments to the emails, together with further communications he had had with Market Securities. Mr. Leonard explained that the omitted documents had been inadvertently overlooked by his advisers.
    2. In his witness statement for the trial, Mr. Uzan alleged that it had been established in the inter-solicitor correspondence that Mr. Leonard himself conducted a review of his documents (rather than the solicitors), and – importantly – he had also selected which documents he considered relevant.
    3. At my request, both parties put in brief written submissions on this issue. Square’s counsel clarified that they were not suggesting that there was a breach of any professional obligation by Mr. Leonard’s solicitors, as opposed to underscoring what they submitted was evidence of lack of candour on the part of Mr. Leonard himself. They stated that the solicitors “are under an obligation only to advise their clients properly on their disclosure obligations“, pointing to CPR PD 31A, at para 4.4. That paragraph states:
“If the disclosing party has a legal representative acting for him, the legal representative must endeavour to ensure that the person making the disclosure statement (whether the disclosing party or, in a case to which rule 31.10(7) applies, some other person) understands the duty of disclosure under Part 31.”
    1. On Mr. Leonard’s side, it was clarified that:
“it is not correct to suggest that the Defendant’s solicitors were not involved in the document review, [and] there is nothing untoward in the Defendant undertaking searches for potentially relevant documents, particularly in circumstances where the party is a private individual who holds a limited number of documents and is well aware of where relevant documents are located.”
It was also pointed out that Mr. Leonard had raised numerous serious issues with the adequacy of Square’s disclosure exercise too, including, they said, a complete failure to search for documents relating to Mr. Diallo.
    1. I am not prepared to find, on the basis of the evidence I have seen, that there has been a breach of professional duties on either side, in any respect. I am well aware of the immense strains placed on both advisers and litigants by expedited proceedings of this nature, and I have been highly impressed with the skill, efficiency and industry of all the legal advisers in this case.
    2. I must, however, underline that the paragraph from the Practice Direction to CPR Part 31A, to which Square’s counsel drew attention, does not (and is not intended to) set out the extent of a solicitor’s relevant disclosure duties in civil litigation. It is fundamental that the client must not make the selection of which documents are relevant (cf. the allegation in this regard made on the Claimant side). The position is well summarised in Matthews and Malek, Disclosure (5th edn. 2017), at paragraphs 18-02 and 18-09:
“A solicitor’s duty is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. This duty owed to the court, is:

“one on which the administration of justice very greatly [depends], and there [is] no question on which solicitors, in the exercise of their duty to assist the court, ought to search their consciences more.”

“The solicitor has an overall responsibility of careful investigation and supervision in the disclosure process and he cannot simply leave this task to his client. The best way for the solicitor to fulfil his own duty and to ensure that his client’s duty is fulfilled too is to take possession of all the original documents as early as possible. The client should not be allowed to decide relevance—or even potential relevance—for himself, so either the client must send all the files to the solicitor, or the solicitor must visit the client to review the files and take the relevant documents into his possession. It is then for the solicitor to decide which documents are relevant and disclosable.”