COST BITES 118: LOOKING AT DETAILED ASSESSMENT (5): RECORDINGS MADE BY SOLICITORS NEED NOT BE DISCLOSED ON SOLICITOR & OWN CLIENT ASSESSMENT

We are returning to the issue of detailed assessments, albeit solicitor and own client assessments.  In Turner v Coupland Cavendish Ltd [2023] EWHC 2721 (SCCO) Costs Judge Rowley dismissed an application for disclosure of recordings of telephone conversations between the solicitors and their clients.

“Locating such recordings, as well as the time spent by the parties listening to the recording to check its length and whether it all related to the call in question is, in my view, a transparently disproportionate approach to a detailed assessment.”

THE CASE

The judge was conducting an assessment of  six solicitor and own client costs assessments under the Solicitors Act 1974.   The substantive hearing was adjourned. However the judge heard a number of preliminary applications.  One of those applications was for the disclosure of the recordings that the solicitors had made of telephone conversations with their clients.

THE JUDGMENT ON THIS ISSUE

The judge refused the application.    The claimants had several problems. Firstly the application was not made properly, secondly there was issues as to whether these were documents that formed part of the solicitors “file” that had to be disclosed. Further there were issues in relation to proportionality.

1. 1. The first application on the part of the claimant is for disclosure of the call recordings as referred to in the first point of dispute above. Mr Carlisle ran several different arguments as to the method by which the claimant ought to be entitled to receipt of the recordings.

1. 1. One of these was to say that it was in fact simply the inspection of documents which had already been disclosed. As can be seen from the point of dispute and reply, the reference to telephone calls being recorded was contained in a script which would be delivered by the fee earner to the client, presumably at the outset of the retainer. I say presumably because I have not seen that document. Mr Carlisle’s argument was that such recordings clearly exist and they are obviously relevant to the case. Since they are referred to in the file, they should be capable of inspection by the claimant.

1. 1. In response, Mr Brighton pointed out that the reference to the recording was not in a statement of case or a witness statement, for example. He did not accept therefore that the call recordings had been disclosed. What had been disclosed was the solicitors’ file of papers in accordance with the court order and, as it said in the reply, any call recordings were not stored on the solicitors’ file.

1. 1. It seems to me that this is a complete answer in respect of the argument that the documents have actually been disclosed. CPR 31.14 says that a party may inspect a document mentioned in a statement of case, a witness statement, a witness summary or an affadavit. That is a restricted group of documents which all share the quality of having been produced specifically for service on the opponent (as well as filing at the court). Documents referred to in such a statement or affidavit would obviously have been disclosed in a document which itself could count as evidence before the court. Those documents are a world away from a reference in a script on the client’s file referring to the fact that the calls between the solicitor and client would be recorded.

1. 1. In the absence of an argument that the call recordings have been disclosed already, the disclosure application runs into the ground procedurally. I ordered disclosure to be provided in respect of the solicitors’ file. Whilst that is not standard disclosure via a list in form N265, it is standard disclosure in the sense that it is the disclosure that normally occurs in a case involving the assessment of a bill of costs rendered by a solicitor to their client. There is no scope for any further standard disclosure and Mr Carlisle was right to say that he did not specifically ask for this to occur, nor did he ask for a list verified by an affidavit or other procedural approach that has sometimes been taken.

1. 1. It seems plain therefore that the application was for specific disclosure in terms of the call recordings. It was Mr Brighton’s argument that specific disclosure required procedural steps to be taken which have not occurred in this case. In particular, paragraph 5.1 of Practice Direction 31A refers to the making of an application for an order which must specify the order that the applicant intends to ask the court to make and which must be supported by evidence. The grounds on which the order sought either have to be in the application notice or in the evidence filed in support. None of that had occurred in this case.

1. 1. The need for these six cases to be adjourned to another date has been clear to all parties for some time. Correspondence between the parties and the court as to whether any directions could usefully be given was undertaken prior to the existing hearing date. One particular issue raised was whether a formal application for outstanding matters needed to be made or whether they could be dealt with by way of case management directions under CPR Part 3. The defendants wished for formal applications to be made: the claimants thought that that was not necessary.

1. 1. Mr Brighton explained the defendants’ position as being a result of what he considered to be a moving target in relation to the disclosure sought by the claimant. By way of example, he referred to the fact that the request in the points of dispute regarding the call recordings was not just for the call at which the sign up script was involved but also for calls throughout the case so that the time recorded could be compared with the recordings themselves. At the hearing, and in Mr Carlisle’s skeleton, the call recordings sought were solely those regarding the initial interactions between the client and solicitor in order to consider what was said to him at the time he signed up with the defendant.

1. 1. Mr Carlisle’s response to this need for formality was a citing of the decision of Ritchie J in Edwards and Others v Slater and Gordon which he said had clarified that Part 31 applied to Solicitors Act assessments. Indeed, Lord Justice Warby, when considering a request for permission to appeal Ritchie J’s decision had confirmed that any gap there may be with Part 31 applying could be filled in with the court’s general case management powers in Part 3. By this combination of jurisdiction, I was clearly able to order the call recordings to be provided.

1. 1. Whilst this submission is an accurate reflection of judicial comments in Edwards and Others, I do not see that it assists the claimant here. If the application does not succeed under Part 31 because of procedural irregularities, it cannot be the case that it can be dealt with more leniently under Part 3.

1. 1. I note that paragraph 5.4 of PD 31A says that all the circumstances will be taken into account and if there has been some failure adequately to comply with the obligations regarding disclosure originally, for example by failing to make a sufficient search for documents, then “the court will usually make such order as is necessary to ensure that those obligations are properly complied with.”

1. 1. But this is not a case where the defendant has failed to carry out a sufficient search. It has provided the solicitors’ file and has confirmed that the entirety of that file has been disclosed when pressed by the claimants. In any event, call recordings would not be on the solicitors file but, if anywhere, in some IT backup of presumably thousands of calls taken by the solicitors over time.

1. 1. There is nothing before me from either side about the facility with which any individual telephone call could be identified. It does not strike me as being likely that it is a particularly straightforward task. It is not something which has traditionally been on the solicitors’ file and I think the claimant would have to put forward extremely cogent evidence to justify any of the call recordings being searched for and, if found, made available. (As indeed occurred in the unusual circumstances of the application in Edwards and Others, see below).

1. 1. Mr Carlisle did not emphasise the proposal for call recordings to check the time actually recorded on the file, but he did not resile from that request as set out in the points of dispute when Mr Brighton raised the issue. Locating such recordings, as well as the time spent by the parties listening to the recording to check its length and whether it all related to the call in question is, in my view, a transparently disproportionate approach to a detailed assessment. The claimant’s approach assumes that it is a simple matter to obtain call recordings when required. That may be so, but it does not seem likely to me and the court would need some evidence to demonstrate that this was not the disproportionate approach that it appears to be.

1. 1. Mr Carlisle also relied on a citation from Nichia Corporation v Argos [2007] All ER (D) 299 (Jul) which began “it would be against the interests of justice if documents known to exist, or easily revealed, which would harm a party’s own case or assist another party’s case need not be disclosed because of a blanket prima facie rule against any standard disclosure in patents actions.”

1. 1. That quotation obviously concerned standard disclosure with which I have concluded we are not concerned. But it is interesting in two other aspects. The first is the assumption that the documents would be easily revealed and as I have just said, I am not convinced that is the case in respect of call recordings. Secondly, the disclosure is required where it assists or harms a party’s case. That is obviously a reference to CPR 31.6 concerning the documents a party is required to disclose as standard disclosure. Each party can tell whether the documents it has, or has had, fit into those categories by reference to the statements of case. In detailed assessment proceedings, the statements of case, to the extent that there are any, are the points of dispute and reply. There is nothing in the point of dispute as it currently stands to indicate whether any recordings would either harm or assist either party.

1. 1. Mr Carlisle gave examples of both ends of the spectrum as to the effect a detailed (or not) explanation of various matters would have on the parties’ arguments. But that was entirely theoretical and it highlights the fact that, at this point, the claimant has given no indication of what he says was deficient in the signup process and which may be proved or disproved by the call recordings. The cart is well and truly before the horse in that the claimant wishes to hear call recordings before deciding on what his case may be (if any).

1. 1. It is sometimes said by claimants’ representatives in this situation that they cannot know what their arguments might be but that is a luxury which claimants do not generally have. Mr Turner was present at the telephone calls and his evidence will be what he remembers about them. If, for example, he said that the sign up call lasted barely 5 minutes and as such the script in the file had not been gone through, then there may be something on which an application for specific disclosure might be built. But so far the claimant has said nothing and so there is nothing on which the court could act, even if it felt it might otherwise be appropriate to do so.

1. 1. In the case of Edwards and Others, a positive case was put forward with the aid of a recording from a different claimant which suggested that the signup script had not necessarily been followed. Requesting the equivalent call recording was a much simpler task for this court as well as for Ritchie J. But here the application consists entirely of supposition as to what the call recording might say, if anything, meaningful at all.

1. 1. One of Mr Carlisle’s arguments was that not only was the claimant currently unable to put forward his case as to the usefulness of the call recordings, absent disclosure, but that this was compounded by the assumption that the defendant already knew what their position was since they must have listened to such recordings. In the unlikely event that the defendant had not yet listened to them, Mr Carlisle submitted that this was all the more reason why inspection was necessary.

1. 1. I did not find that to be a compelling argument. The defendant has disclosed the solicitors’ file in the usual way in support of the bill delivered to the client. The call recordings made no appearance in the original points of dispute and their supposed importance has only surfaced quite recently and without any indication of why the claimant says those call recordings might assist. Why they should be exhumed, should they exist, and be listened to by the solicitors or their costs lawyers in such circumstances, given the expense that would incur, is not readily apparent.

1. 1. Mr Carlisle’s final submission was that, if all of the other arguments were unsuccessful, the client, as the principal, was entitled to access to all of the records of the solicitor, as agent, even once the solicitor had stopped being the client’s agent. Mr Carlisle included call recordings within this broad description and relied on the case of Yasuda Fire and Marine Insurance Co of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174 which featured more in relation to the second application concerning ATE insurance and commissions.

1. 1. The purpose of recording calls with clients seems to me to be most likely for the purpose of demonstrating what was said if a complaint of one nature or another was raised by the client or indeed a regulator. (Transcribing calls for the purpose of running the substantive case would appear to be prohibitively time consuming and expensive.) As such, it is a defensive mechanism and seems to me to be analogous to notes written by the solicitor for his own benefit in the file. Such documents are not ones to which the client is entitled. They are usually disclosed in detailed assessment proceedings in order to justify the time claimed. Nevertheless, they are the property of the solicitors rather than the client.

1. 1. I have dealt with Mr Carlisle’s argument regarding the entitlement of the client to its former solicitors’ documentation more fully in the second application. But as far as the submission that the case of Yasuda Fire and Marine entitles the client to call recordings made by the solicitor is concerned, I consider that to be more than a step too far. Such recordings have never been part of the solicitors’ file and it is to that file which the client has ever had access in Solicitors Act proceedings. As I have indicated in the previous paragraph, even if the call recordings are part of the solicitors’ file, contrary to my view, then they are part of the working notes and similar documents which remain the solicitors’ property rather than the client’s. For reasons of dealing with a case in a proportionate fashion, I do not consider that they would need to be disclosed even where the parties have agreed that the “solicitors’ file” should be disclosed in any event.

1. 1. It will need a judge of higher judicial authority than myself and, I would suggest, some evidence as to the facility of locating them, to determine that call recordings should become part of the file of papers to which the client is entitled to examine to any extent, not least because of the logistical difficulties that would almost certainly entail, in my view, in the organisation of solicitors’ practices.

1. In any event, I refuse the claimant’s application for disclosure of any call recordings that there may be, both on the grounds of procedural irregularity in there being a complete absence of application, draft order or evidence to put this application on a proper specific disclosure footing, as well as the failure of the claimant to make out why such documents advance the claimant’s case in the absence of any form of positive statement of the claimant’s position.