Yet another bid to obtain the part of a personal injury (PI) file over which the solicitor has proprietary rights has failed in the Senior Courts Costs Office.
Master Leonard built on his ruling last year in Green v SGI Legal, which was also brought by JG Solicitors, the firm that has lit a fire under PI lawyers by challenging deductions from damages.
He said the judgment should be read as if the arguments he considered in Green had been put to him in this case, and rejected for the same reasons.
JG instead put forward two new lines of argument: that it would be appropriate for the court, in the exercise of its inherent jurisdiction over solicitors, to make an order for the delivery of the documents; and that the defendant owed fiduciary duties to the claimant, which should be taken into account when considering whether to exercise that inherent jurisdiction.
Drawing from the Court of Appeal’s 2014 ruling in Assaubayev v Michael Wilson and Partners Ltd, Master Leonard said “the point” of the court’s inherent jurisdiction “is to address cases where the conduct of the solicitor is not what it should be.
“The examples referred to in Assaubayev seem to me to make it quite clear that it is a summary jurisdiction, to be exercised only in clear-cut cases.”
There was a dispute over the level of damages agreed in the case, but the judge found that “the claimant has, since the completion of the retainer in 2014, been in a position to know how much he received by way of damages, and to know how much he paid to the defendant.
“If he cannot now accurately recall the position it would be because he has not kept, or has not checked, any relevant records.”
Dismissing the application, Master Leonard said there was no evidence, “certainly not of the clear-cut kind that would be needed”, of any conduct on the part of a solicitor that might make it appropriate for the court to exercise its inherent jurisdiction.
JG had also failed to identify either a fiduciary duty which obliged a solicitor to supply to a client copies of documents which did not belong to the client, or a breach of any other fiduciary duty.
“Third, it does not seem to me that it would be appropriate to exercise the inherent jurisdiction of the court to order, in effect, pre-action disclosure on the basis that the claimant suspects overcharging by the defendant.”
Master Leonard concluded: “It is important to put this application into context. One must bear in mind the criteria for pre-action disclosure set out by CPR 31.16, which this case does not meet.
“One must also bear in mind the stated purpose of the application, which is to allow the claimant to take advice on the exercise of his statutory right to apply for assessment of the defendant’s bills.
“Those rights are subject to time limits. Given that, on the evidence, the claimant received bills and paid them about three years before he instructed his present solicitors to explore the possibility that he had been overcharged, it seems likely that those time limits expired some years ago.”