Hanley v J C & A Solicitors, Court of Appeal - Queen's Bench Division, September 28, 2018, [2018] EWHC 2592 (QB)

Resolution Date:September 28, 2018
Issuing Organization:Queen's Bench Division
Actores:Hanley v J C & A Solicitors

Neutral Citation Number: [2018] EWHC 2592 (QB)

Appeals : QB/2018/0009, QB/2018/0071,

Cases : JJ/1706056, CL1706093






Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28 September 2018

Before :


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Between :

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Miss Emma Hynes (instructed by JG Solicitors) for the Appellants

Mr Robert Marven QC (instructed by the Respondents) for the Respondents

Hearing date : 9 July 2018

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Mr Justice Soole :

  1. The issue in these appeals is whether the Court, under the inherent jurisdiction over its officers and/or s. 68 Solicitors Act 1974, has the power to order a solicitor to make and supply to his client (or former client) copies of documents which are the property of the solicitor, subject to payment of reasonable costs for the task.

  2. By Orders in each action the subject of these appeals, the costs judge held that the answer was no. There are decisions to the contrary in two other recent cases: Swain v. J C & A Ltd [2018] EWHC B3 (Costs) (Master Brown); and the Northern Ireland decision in The Mortgage Business Plc & ors v. Taggart [2014] NICh 14 (Deeny J). I understand that there are numerous applications which give rise to this point; particularly in the context of low-value personal injury claims funded by conditional fee agreements (CFA).

  3. Section 68 falls within Part III of the Act which is headed `Remuneration of Solicitors'. It provides as material `(1) The jurisdiction of the High Court to make orders for the delivery by a solicitor of a bill of costs, and for the delivery up of, or otherwise in relation to, any documents in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the High Court.'

  4. Section 70 makes provision, on application by the party chargeable therewith, for an order for assessment of the solicitor's bill by the Court.

  5. In each case that the appellant clients retained the respondent solicitors in relation to the recovery of compensation for injuries sustained in a road traffic accident. The retainer was on the terms of a CFA entered after the commencement of the LASPO Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 2. reforms commencing 1 April 2013. The terms limited the solicitors' recovery of their success fee to the statutory maximum 25% of the relevant General damages for pain suffering and loss of amenity; and damages for past pecuniary loss. damages recovered. Upon settlement of each claim, that total percentage and the ATE premium were deducted.

  6. In each case the appellants subsequently instructed fresh solicitors (JG Solicitors Ltd (JG)) for the initial purpose of obtaining advice on whether to exercise their right to a detailed assessment of the solicitors' fees pursuant to s.70.

  7. By letter dated 28 March 2017 JG, on behalf of the appellant Mr Hanley, requested delivery up by his former solicitors (JC&A) of a complete file of papers. For that purpose they offered to pay copying charges of 25p per page for those documents which belonged to JC&A. JC&A complied with the request in respect of documents belonging to their former client, but offered copies of documents belonging to themselves for a fee of £644, apparently based on 4 hours at £161 ph (Grade C rate). That counter-offer was refused.

  8. By letter dated 15 May 2017 JG, on behalf of the appellants Green/Mughal/Mughal/Edwards, requested delivery up by their former solicitors (SGI Legal) of their complete file. JG complied in respect of documents belonging to their former clients but refused in respect of documents belonging to themselves. These two claims will be referred to as `the Hanley action' and `the Green action '.

  9. By Claim Forms respectively issued 14 and 12 November 2017 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.'

  10. In each case the attached `Details of Claim' 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 documents claimed pursuant to the Data Protection Act 1988.

  11. The claims under the Data Protection Act were not pursued at the hearings of the applications. By that time the claimants in the Green action had offered to pay photocopying charges at 15p per page.

  12. The applications were each heard on 6 December 2017 : the Hanley action in a telephone hearing before Master James in the morning; the Green action in the afternoon before Master Leonard. As in these appeals, Ms Emma Hynes appeared for the applicants.

    The decision in the Hanley action

  13. By her skeleton argument Miss Hynes had limited the application to copies of (i) all letters addressed by the solicitors to Mr Hanley (ii) all `funding documents'; and three other categories which are not pursued in this appeal. The relevant funding document was identified in the course of this appeal as the CFA.

  14. As to authorities, the submissions of Counsel focussed on 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.

  15. As to the need for a copy of the CFA, Miss Hynes further relied on CPR PD46 para. 6.4 which in respect of s.70 applications includes the requirement that : `The application must be accompanied by the bill or bills in respect of which assessment is sought, and, if the claim concerns a conditional fee agreement, a copy of that agreement. If the original bill is not available a copy will suffice.'

  16. In her reserved judgment (19 December 2017) Master James concluded that the English decisions 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 Taggart. 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 [1941] 2 KB 205 and Chantrey Martin v. Martin [1953] 2 QB 286) and concluded that these further demonstrated the critical significance of ownership.

    The decision in the Green action

  17. At the hearing before Master Leonard, Miss Hynes confined the application to three categories of documents, namely copies of: funding documents; all correspondence sent to the claimants; all invoices created during the currency of the retainer. As was recorded in the reserved judgment (18 December 2017), Miss Hynes conceded, by reference to Leicestershire County Council, `... that the Claimants have no right to require that the Defendants supply, for example, copies of file notes or ledger entries that remain their property, on payment or otherwise.' (para.33). However, the claim to copies of documents in the three remaining categories was made as of right, subject to payment of reasonable copying costs.

  18. In addition to the decisions in Thompson, Wheatcroft and Taggart, Miss Hynes submitted that the language of s.68 (in particular `or otherwise in relation to' and `any documents') further demonstrated the wide scope of the inherent jurisdiction.

  19. In his judgment Master Leonard concluded in particular that there was no such entitlement. In particular (i) in disagreement with Taggart, Thompson and Wheatcroft provided no such authority (paras.28, 31-2, 38); (ii) 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 [2002] EWCA Civ 1500)...

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