Hanley v J C & A Solicitors

The inherent jurisdiction over solicitors, as extended by Solicitors Act 1974, s.68, does not permit the court to order a solicitor to supply copies of documents which remain the solicitor’s property. The jurisdiction is derived from the inherent jurisdiction and its scope must be identified from authority, not expanded by the broad statutory wording. Ownership remains the critical distinction. The court may order delivery or inspection of documents belonging to the client, but cannot use its supervisory jurisdiction, s.70 assessment powers, or pre-action disclosure principles to circumvent the solicitor’s proprietary rights. Practical difficulties, including a former client’s need for a conditional fee agreement to consider detailed assessment, do not alter that principle.

These were appeals from decisions of Master James and Master Leonard in the Senior Courts Costs Office. Former personal injury clients sought copies of documents held by their former solicitors, including correspondence, funding documents and invoices, subject to payment of reasonable copying costs. The clients accepted that certain working papers remained the solicitors’ property but argued that the court had a discretionary power under its inherent jurisdiction and Solicitors Act 1974, s.68, to require copies.

The appeals concerned whether that power existed where the documents were owned by the solicitor, and whether the answer was affected by the court’s supervisory jurisdiction over solicitors, the detailed assessment procedure under s.70, or CPR 31.16.

1. The appeals were dismissed. The court held that it had no jurisdiction under the inherent jurisdiction or Solicitors Act 1974, s.68, to order delivery, copying or other relief in respect of documents which were the solicitor’s property.
2. Section 68 extended the reach of the pre-existing inherent jurisdiction to cases in which no business had been done in the High Court. It did not itself create a wider power. The jurisdiction therefore had to be identified from authority. An order affecting another person’s property required an explicit legal basis.
3. The authorities relied upon by the appellants did not establish the proposed discretion. Thompson was concerned with ownership and its reference to copies being available on payment merely recorded the solicitor’s offer. Wheatcroft likewise treated ownership as decisive. Horsfall and Holdsworth involved documents for which the client had paid and did not concern documents owned by the solicitor.
4. The distinction between client documents and professional working papers was supported by Leicestershire County Council and Chantrey Martin. Crocker was confined to its facts, where the solicitors did not assert ownership. The court followed the ownership-based approach in Richards Butler.
5. The court respectfully disagreed with Taggart and Swain. Neither the purpose of Part III, the court’s powers on a s.70 assessment, CPR 31.16, nor CPR PD46 para. 6.4 overcame the proprietary distinction or created a form of pre-action disclosure.
6. As an observation, a solicitor’s refusal to provide a mislaid CFA, where the former client offered reasonable copying costs and needed it to consider a s.70 application, might justify that application despite non-compliance with CPR PD46 para. 6.4 and might have costs consequences. That observation did not affect the decision on the appeals.

• High Court (Queen's Bench Division): Appeals from decisions of Master James and Master Leonard in the Senior Courts Costs Office dismissed.