DR Sheridan LLP v Higgins & Anor

A solicitor who has acted jointly for co-executors must distinguish documents created during the joint retainer from documents created after one executor has withdrawn instructions. Subject to the solicitor’s retaining lien, documents created after withdrawal are held to the order of the remaining client who alone gives instructions, even where that client acts as executor and the work is intended to benefit the estate. A co-executor may have a prima facie entitlement to inspect non-controversial estate documents, but that does not give the co-executor a proprietary or beneficial right requiring the solicitor to hold the entire file to both parties’ orders.

D R Sheridan acted for Edward Higgins and Joanna Woods jointly as executors of their mother’s estate. A dispute arose concerning approximately £200,000 transferred into accounts associated with Mrs Woods’s children. Mrs Woods withdrew her instructions after a potential conflict emerged, and D R Sheridan thereafter acted on Mr Higgins’s instructions alone, including in proceedings intended to protect the disputed money.

When Mr Higgins instructed new solicitors, D R Sheridan asserted a lien for unpaid costs and refused to release the post-withdrawal file unless it was also copied or made available to Mrs Woods’s solicitors. D R Sheridan brought Part 8 interpleader proceedings seeking directions concerning the file and declarations concerning its lien.

1. Retaining lien. D R Sheridan was in principle entitled to assert a retaining lien over the file until its reasonable costs, charges and expenses for acting first jointly for Mr Higgins and Mrs Woods, and subsequently for Mr Higgins alone, had been paid. The sum of £22,301.74 was accepted as a reasonable amount.
2. Effect of withdrawal. From 9 June 2009, when Mrs Woods withdrew her instructions, Mr Higgins was D R Sheridan’s sole client. The relevant documents were therefore held to his order. The fact that Mr Higgins acted as executor and believed that he was acting in the estate’s best interests did not alter the solicitor-client relationship.
3. Confidentiality and file entitlement. Documents supplied by Mr Higgins and his Australian lawyer for potentially hostile proceedings against Mrs Woods were confidential and privileged in Mr Higgins’s hands. Mrs Woods had no continuing proprietary or beneficial right to the entire post-withdrawal file merely because she remained a named co-executor. Her prima facie entitlement to access non-controversial documents concerning the estate was a matter to be addressed by Mr Higgins after transfer of the file, not a basis for requiring D R Sheridan to hold the whole file to her order.
4. Disposition. The post-9 June 2009 part of the file was held exclusively to the order of Mr Higgins. No further direction was necessary. The court criticised D R Sheridan’s refusal to adopt a sensible compromise and considered the position taken by Mrs Woods in claiming equal access to the entire file to have been unreasonable.