The appellants in these cases were former clients of the solicitors and sought copies of documents in the files in order to determine whether to seek an assessment of costs.
By Claim Forms in each action, the appellants sought:
‘… an Order pursuant to s.68 Solicitors Act 1974 and/or the inherent jurisdiction of the High Court over solicitors/ s.7(9) Data Protection Act 1998 for – 1. Delivery of such parts of the Defendant’s file over which the Claimant has proprietary rights, and 2. Delivery of copies of such other parts of the file over which the Claimant does not have proprietary rights. 3. The costs arising from this application to be paid by the Defendant.‘
In each case the appellants claimed entitlement (‘subject to reasonable copying charges’) to copies of documents in a number of listed categories to which they asserted no proprietary right. They comprised:
(i) Any electronic communications;
(ii) Letters written by the Claimant to the Defendant;
(iii) File copies of letters written by the Defendant to the Claimant;
(iv) File copies of letters written by the Defendant to third parties;
(v) Documents sent by the Claimant to the Defendant during the retainer, the property in which was intended at the date of despatch to pass from the Claimant to the Defendant;
(vi) Attendance notes, working notes, diary notes that were prepared for the benefit and protection of the Defendant;
(vii) Timesheets, accounts documents, invoices (including a cash account) sent to the Claimant; and
(viii) documents claimed pursuant to the Data Protection Act 1988.
Decisions in the SCCO
In Hanley, Master James concluded that the English decisions In re Thompson (1855) 20 Beav 544 (Sir John Romilly MR), In re Wheatcroft (1877) 6 Ch D 97 (Sir George Jessel MR) and the Northern Ireland decision in Taggart provided no authority for the proposition that the inherent jurisdiction permitted orders in respect of documents over which the solicitors (but not the client) had proprietorial rights; and did not follow the contrary decision in The Mortgage Business Plc & ors v. Taggart  NICh 14 (Deeny J). She also drew attention to the Law Society’s current Practice Note ‘Who owns the file?’ (21 March 2017) and the authorities cited therein (in particular Leicestershire County Council v. Michael Faraday and Partners Ltd  2 KB 205 and Chantrey Martin v. Martin  2 QB 286) and concluded that these further demonstrated the critical significance of ownership.
In Green, Master Leonard also concluded that there was no such entitlement. In particular:
- in disagreement with Taggart, Thompson and Wheatcroft provided no such authority (paras.28, 31-2, 38);
- the claim was inconsistent with settled law as to what a client needs in order to consider whether to challenge a solicitor’s bill (Ralph Hume Garry v. Gwillim  EWCA Civ 1500) (para.39);
- the claim of a ‘free standing right’ to obtain copies of the solicitors’ property was at odds with, and an attempt to bypass, the pre-action disclosure provisions of CPR 31.16 (para.40);
- in any event there was no evidence as to the extent to which the relevant documents were already in the claimants’ possession (paras. 41-42).
The decisions were appealed.
MR JUSTICE SOOLE:
- 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.
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.
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.
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.
- As to [Ex parte Horsfall (1827) 7 B & C 528] and [Ex parte Holdsworth (1838) S.C. 6 Scott 170)], 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 v. Martin  2 QB 286]] at p.293.
- 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.
- 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.
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.
- The importance of ownership is further confirmed by the decisions of the Court of Appeal in [Leicestershire County Council v. Michael Faraday and Partners Ltd  2 KB 205] 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, 4th 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?’
- As to [In re Crocker  1 Ch. 696] 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.
- As to [Richards Butler v. Hansen  EWHC 1730 (QB)], 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.
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.
- It follows that I respectfully disagree with the decisions of Deeny J in Taggart and of Master Brown in [Swain v. J C & A Ltd  EWHC B3 (Costs)] 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.
- In reaching this conclusion on the appeals, I readily acknowledge the practical considerations and implications identified by the Court in Taggart and Swain. However I do not think that these can defeat the principle of ownership.
- 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.
- 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.