It is “fundamental” to the disclosure duties of solicitors that clients are not allowed to select relevant documents, the High Court has stressed.
Ruling in an employment dispute, Jon Turner QC, sitting as a deputy High Court judge, said brokerage Square Global alleged that the defendant, rather than his solicitors, had selected the documents relevant for disclosure.
Mr Turner said Square Global launched proceedings against broker Julien Leonard following his resignation from the firm in November 2019. Square accused Mr Leonard of breaking his employment contract, which included six months’ notice.
The firm sought a declaration that Mr Leonard remained an employee until May 2020, and was prevented from working for anyone else during that period, along with injunctive relief enforcing certain post-termination restrictive covenants and damages.
Mr Turner ruled that Mr Leonard continued to be an employee under his contract with Square and had breached his contract by resigning summarily in November 2019. He rejected Mr Leonard’s counterclaim for constructive dismissal.
In a postscript to his ruling in Square Global v Leonard  EWHC 1008 (QB), the judge said that at the trial in March, Square had “complained strongly” that Mr Leonard had been “remiss” in his disclosure duties.
In particular, it said he only disclosed three cover emails between him and rival firm Market Securities, failing to disclose “important attachments”.
In his witness statement for the trial, one of the founders of Square 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”.
Counsel for Square said they were not suggesting any breach of professional obligations by Mr Leonard’s solicitors, London firm Wallace, stating that solicitors were “under an obligation only to advise their clients properly on their disclosure obligations”.
Counsel referred to practice direction 31A, which emphasises the need for solicitors to make sure that the clients understand the duty of disclosure.
Mr Turner did not find any breach of professional duties by either side. “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,” he said.
But he emphasised that the practice direction “does not (and is not intended to) set out the extent of a solicitor’s relevant disclosure duties in civil litigation”.
He went on: “It is fundamental that the client must not make the selection of which documents are relevant (the allegation in this regard made on the claimant side).”
The judge quoted from Matthews and Malek on Disclosure (5th edition, 2017): “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.”