SCCO refuses latest bid for solicitor’s file as appeal looms

Files: Definitive guidance hope

The Senior Courts Costs Office (SCCO) has again rejected a bid by a personal injury client for access to their former law firm’s file.

Master Leonard said “some definitive guidance on the appropriate response to the many delivery-up applications currently being received” by the SCCO was on the way, with appeals in the cases of Green and Hanley set to be heard together next month.

His latest decision, in Whale v Mooney Everett Solicitors Ltd [2018] EWHC B10 (Costs), was issued in March but only published last week.

The potential challenge to the defendant law firm’s fees was sparked by Mooney Everett belatedly refunding the claimant £165 for an after-the-event insurance premium that was not actually taken out.

The claimant went to the costs business and as he did not have any of the paperwork, the firm sought disclosure of various documents to advise on the viability of applying for an assessment under section 70 of the Solicitors Act 1974.

Master Leonard said: “The position here seems to me to be quite straightforward. The claimant and the defendant entered into a contract by reference to which the defendant is entitled to render an administration charge for the supply of documents that remain the property of the claimant.

“I do not accept that the charge operates, as [counsel for the claimant] argues, as a fetter upon the claimant’s exercise of his statutory rights. The claimant was given all the information he needed to exercise his statutory rights, and it is not the defendant’s fault that he did not retain it.”

The retainer provided for a minimum payment of £30 to retrieve papers but Mooney Everett said that in this case it would charge £337.50 plus VAT.

Master Leonard said: “There is nothing manifestly excessive about the defendant’s proposed charge, which as [counsel for the defendant] says is consistent with the cost of a certain amount of time at a junior level in identifying the papers to which the claimant is entitled, and a lesser amount of time at a more senior level checking what has been done.

“Given that the defendant, upon previously supplying copies of documents pursuant to a similar request, subsequently found itself embroiled in litigation as a result, it is understandable that a certain amount of care would be taken in identifying the documents to be supplied to the claimant.”

Payment of the fee would entitle the claimant to the correspondence entered into by Mooney Everett on his behalf with third parties.

“I do not accept that I have jurisdiction to order the defendant to deliver any of the other documents sought by the claimant.

“If I did have such jurisdiction, I do not accept that it would be appropriate for me to exercise it on the grounds offered by the claimant.

“In particular, I do not accept that it would have been appropriate to order the defendant to supply to the claimant copies of the defendant’s internal records or further copies of funding documentation already sent to him on more than one occasion.”

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