PROVING THINGS 196: PROVING THAT FILES WERE (OR WERE NOT) DELIVERED IS MORE TRICKY THAN YOU MIGHT THINK

The judgment of Master Clark in The Law Society of England and Wales (Solicitors Regulation Authority) v Sophie Khan & Co Ltd [2021] EWHC 2 (ChD) highlights the difficulties involved in  proving, or disproving, that a document was delivered.  In this case the Master did not accept that a solicitor had delivered a file of papers to the Solicitors Regulation Authority.

 

THE CASE

The claimant regulatory body sought an order that the defendant firm of solicitors deliver up a file of papers.  By the time the matter reached the hearing the defendant accepted that the claimant was entitled to the file. However the defendant’s case was that the file had been delivered by hand to the SRA’s offices in Birmingham.  The trial was, therefore, wholly on the issue of whether the file had been delivered.  The trial was also unusual in that the only witness for the defendant firm also appeared as solicitor advocate for that firm.

 

THE MASTER’S FINDINGS

The Master reviewed the facts and considered the defendant’s case and then the claimant’s submissions.

Claimant’s submissions
    1. The SRA submitted that Ms Khan’s evidence on the key issue of whether the Files were delivered on 21 May 2019 should not be accepted, or in the alternative, that she had not discharged the burden of proof on her to show that they had.
    2. It relied upon the following matters:
(1) Ms Khan’s performance in the witness box;

(2) the inconsistency of her evidence with the SRA’s Deliveries Policy at The Cube;

(3) the inconsistency of her evidence with that of Ms Kalia-Hona;

(4) the inconsistency of her evidence with her other conduct;

(5) the absence of corroborating evidence;

(6) the unlikelihood of the Files having been misplaced without the SRA ever being aware of them;

I discuss each of these in turn.
Ms Khan’s performance in the witness box
    1. I have already recorded Ms Khan’s refusal to answer questions. She was also evasive in the questions she did choose to answer. She chose not to answer questions which were difficult to answer. Most importantly, she refused to give any explanation or justification for her failure to comply with the 3 orders requiring her to deliver copies of the Coulthard files to the SRA. Standing back, her performance was not such as to give confidence in the reliability of her evidence, and certainly not to require its acceptance.
Inconsistency with the Deliveries Policy
    1. Ms Khan’s evidence, if accepted, would have required the staff at The Cube to have wholly disregarded the Deliveries Policy. Ms Khan questioned whether the policy applied to the staff in question. However, it is clear, from the extracts set out above, that it does. The Firm’s case requires that the Level 8 receptionists acted in wholesale breach of the policy, in circumstances where they were aware that the documents were client files and there was a large volume of them. In my judgment, this is inherently unlikely.
Inconsistency with evidence of Ms Kalia-Hona
    1. Ms Khan’s account of what occurred at the Level 8 Reception is set out at para 47 above. If this is what happened, then, in my judgment, it is highly unlikely that the receptionist would have taken no steps to contact Ms Kalia-Hona. Accepting Ms Khan’s evidence requires accepting that the receptionist would not even have picked up the phone, but would have left bulky confidential files sitting on the reception desk in a public area. It is not, in my judgment, credible that this would have happened.
Inconsistency with her other conduct
    1. As noted above, Ms Khan refused to answer questions about her reasons for not complying with the Notice, and not delivering up the copy documents as she had been ordered to do.
    2. However, her consistent position has been an unwillingness to deliver up the Files. Before the proceedings were commenced, she put forward various grounds for refusing to do so, set out at para 25 above. In cross examination, she did not concede these grounds. Delivering up the Files in May 2019 is not consistent with her position that has been taken by her since service of the Notice as to the SRA’s entitlement to them.
    3. More importantly, if Ms Khan had delivered the Files, there could be no reasonable grounds for not providing copies to the SRA, as she was ordered to do on three occasions. However, not only did Ms Khan not comply with those orders, as set out above (in para 17) she repeatedly sought to appeal them, even though at the hearing on 28 August 2019, she had raised no objection to the order being made. In cross examination, she was asked if she had any objection to that order, and she had none.
    4. The only ground put forward by Ms Khan was that she was unable to access her office during lockdown. I do not accept that she was not able to access her office, nor that she had any proper reason for non-compliance the orders. In any event, there was the period from August 2019 to March 2020 when there were no restrictions in place; and there has been no compliance since lockdown ended. As the SRA’s counsel submitted, it is a very serious matter for a solicitor repeatedly not to comply with a court order; and if Ms Khan had a proper explanation, she could have provided it at this trial. It is inexplicable if as Ms Khan says, she had already delivered the Files.
Absence of corroborating evidence
    1. The evidence relied upon by Ms Khan as corroborating her account is, in my judgment, weak. The value of the Covering Letter is undermined by Ms Khan’s failure to respond to the SRA’s request for a soft copy, so that they could examine its metadata. The train tickets are not strong evidence: they do not show that the journey was made, or, if it was made, that Ms Khan went to The Cube.
    2. Given the importance of the Files, there are a number of steps which Ms Khan could reasonably have been expected to have taken which would have enabled her to be sure of proving delivery. She could have asked for a receipt at the reception; or taken a spare copy of the letter and asked the receptionist to sign it.
    3. She could have contacted the SRA in advance, and arranged an appointment to hand over the Files. Ms Khan had had no contact with Ms Kali-Hona since September 2017, 10 months before the date she says she delivered the Files. It shows a surprising lack of care simply to turn up “out of the blue” at the SRA’s offices.
    4. Ms Khan also took no steps after having, on her case, delivered the Files, to confirm their receipt with the SRA’s solicitors or the SRA; or to inform the court that she had delivered them. Over 2 months elapsed before she did anything.
Unlikelihood of the Files having been misplaced
    1. As noted above, there was no response to Mr Guest’s email of 9 August 2019 asking the entirety of the SRA if they had any knowledge of the Files. The Firm’s case therefore depends on a large volume of documents being lost at the Level 8 Reception, between the Level 8 Reception and the SRA’s offices on the 14th floor, or within the SRA’s offices – without anyone at the SRA ever knowing anything about them. In my judgment, this is inherently unlikely.
Conclusions
  1. In my judgment, taking into account the totality of the evidence, and assessing the likelihood of whether the delivery alleged by the Firm occurred, I consider that on the balance of probabilities it did not. It follows that the claim succeeds.