Judges do not have power to order a solicitor to give a former client copies of documents which are the property of the solicitor, the High Court has ruled.
However, Mr Justice Soole cautioned that solicitors should not always “press their legal rights to the limit”.
The decision of Soole J is the first authoritative ruling on the issue following a spate of cases in the Senior Courts Costs Office brought on behalf of clients who want their files so as to challenge deductions made from their damages in low-value personal injury claims.
The judge said there were “numerous applications” on the same point.
Sitting with Master Haworth as assessor, he was ruling on conjoined appeals against two of those cases Hanley v JC&A Solicitors and Green v SGI Legal. Both of these cases, brought by Leeds firm JG Solicitors, went against the former clients at first instance.
Soole J upheld both decisions. “In my judgment, the court has no jurisdiction to make orders under the inherent jurisdiction and/or section 68 [of the Solicitors Act 1974] in respect of documents which are the property of the solicitor.”
He gave four reasons. 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”.
Second, the powers referred to in section 68 “are derived from the inherent jurisdiction, not the statute itself” – the section simply extended the reach of the jurisdiction to cases in which no business has been done in the High Court, he explained.
Third, after detailed consideration of the case law cited by the appellants, Soole J found that they provided “no authority” for the central proposition that the court has a discretion under the inherent jurisdiction to order delivery up of documents which belong to the solicitor.
“Fourthly, the critical requirements of ownership cannot be overcome by reference to the language of section 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 section 70 application or with the rationale of the required ingredients of a statute bill; or the requirements of PD 46 paragraph 6.4.
“The inherent jurisdiction does not provide a form of pre-action disclosure of documents belong to the solicitor.”
But Soole J cautioned that this did not mean solicitors should “in all circumstances press their legal rights to the limit, nor that they can necessarily do so with impunity”.
He explained: “To take one example, a refusal to comply with a former client’s request for a mislaid CFA (made on an undertaking to pay a reasonable copying charge) so that advice may be obtained on the prospects of a section 70 application, would surely entitle the client to issue such an application notwithstanding the inability to comply with the procedural requirement in PD 46 paragraph 6.4; and could have potential adverse costs implications for the solicitors within those proceedings, whatever their result.”
Under that paragraph, an application for a Solicitors Act assessment must be accompanied by the bill and any conditional fee agreement.