Walsh v Greystone Financial Services Ltd

Where solicitors discharge themselves during continuing litigation, the court will ordinarily order them to deliver the client’s papers to new solicitors against an undertaking preserving the former solicitors’ lien. The court may impose different or additional terms in exceptional circumstances, having regard to the stage and nature of the litigation, the parties’ conduct and the balance of hardship.

The order should extend only to documents reasonably required to progress the litigation. A client and new solicitors should not ordinarily be required to conduct litigation through counsel who alone has access to the relevant papers.

The claimant’s substantive claims against the defendant financial services company had been dismissed in an earlier judgment. The claimant then changed solicitors while the possibility of an application for permission to appeal remained outstanding.

The former solicitors asserted common-law and contractual liens over the litigation papers and refused to release them. The claimant applied for delivery of the papers to his new solicitors, subject to an undertaking preserving the former solicitors’ lien. The issues were whether the former solicitors or the claimant had terminated the retainer, whether the court should order delivery up, and which documents were necessary.

1. Termination of retainer. The former solicitors had brought the retainer to an end. Their letter gave notice of termination but also invited the claimant to change solicitors immediately and threatened further costs if he did not do so. The claimant’s acceptance of that invitation merely abridged the notice period. Treating him as the terminating party would elevate form over substance.
2. Applicable principles. Under section 68 of the Solicitors Act 1974, the High Court had jurisdiction to make orders concerning documents in a solicitor’s possession. The court could not order delivery of documents belonging to the solicitor, but the claimant sought only documents belonging to him.
3. Where solicitors discharge themselves during continuing litigation, the ordinary practice is to order delivery of the client’s papers to new solicitors against an undertaking to preserve the former solicitors’ lien. The practice protects both the lien and the proper progress of the litigation. The court retains a discretion to impose exceptional terms, depending on the nature and stage of the case, the parties’ conduct and the balance of hardship.
4. The fact that counsel retained the trial papers did not make delivery unnecessary. It would place the claimant and new solicitors at a significant disadvantage if counsel alone had access to the documents. Solicitors must form their own view of the merits and proposed conduct of litigation and cannot simply follow counsel’s advice.
5. The order was therefore limited to the trial bundles and daily transcripts of evidence. Other documents, including counsel’s opinion and without-prejudice offers, were not required to assess arguable grounds or prospects of appeal and were excluded. Delivery was ordered against an undertaking by the new solicitors preserving the former solicitors’ lien.

First-instance consequential application following dismissal of the claimant’s substantive claims in [2019] EWHC 1719 (Ch). The present court ordered limited delivery of papers to the claimant’s new solicitors, subject to an undertaking preserving the former solicitors’ lien.