High Court rules solicitors cannot be ordered to give former clients copies of documents which are the property of the solicitor

Our costs law team explore cases where the High Court has ruled that solicitors cannot be ordered to give former clients copies of documents which are the property of the solicitor.

The conjoined appeals of Hanley v JC & A Solicitors Ltd [2017] and Green & Ors v SGI Legal LLP [2017] saw the first instance decisions of Master James and Master Leonard upheld in the first authoritative ruling of its kind following a number of similar cases in the Senior Courts Costs Office.

Hanley regarded a successful claimant in an RTA claim seeking to recover his file from his former solicitors, JC & A Solicitors, amidst concerns regarding the money deducted from his damages pursuant to a conditional fee agreement.

Green & Ors v SGI Legal concerned four separate Part 8 applications for the delivery up of papers where the Defendant had refused to supply the Claimants with copies of documents which belonged to the Defendant firm.

At first instance these applications were refused: concern was cited as to a floodgate of claims if such disclosure was allowed, even if the Claimants were to pay copying fees.

The Law Society’s Practice Note ‘Who owns the file?’ provides useful guidance to practitioners regarding which categories of documents clients are entitled to. The note states that the ownership of documents needs to be considered upon receipt of a client request for the supply of documents, highlighting two categories to which documents fall: those where the solicitor is acting as professional advisor, and those where the solicitor is an agent of the client.

The note explains that the latter category usually includes correspondence with third parties on behalf of the client and that, on normal agency principles, these documents belong to the client. Alternatively, where the solicitor is said to be acting as professional advisor, ownership of these documents depends on the purpose of the retainer and whether the production of such a document was a stipulation of the retainer. Documents prepared for the firm’s own benefit therefore for example file notes, copies of client letters, and internal correspondence, belong to the firm.

It should be noted however that such guidance is on the basis that there is no alternative contractual arrangement with the client.

Conclusions

Whilst these recent decisions are likely to reduce the number of applications for delivery up of the entirety of the solicitor’s file, it remains to be seen whether they will also reduce the number of claims relating to deduction of costs from damages as had previously been expected.

In order to avoid claims such as these, solicitors must ensure that they explain to their clients how they will be paid at the outset of the matter and must remind their clients every time settlement discussions take place. This is likely to remain an area of contention between solicitors and their clients and in our view it is an area ripe for dispute.