Spaul & Anor v Southfields Solicitors Ltd

In a claim for delivery up of documents, the court determines whether the documents were retained by assessing the evidence on the balance of probabilities. Contemporaneous correspondence may be the best evidence of what occurred, but inconsistencies, administrative failures and defects in disclosure do not, without more, establish fabrication. Documents produced for the first time with closing submissions will generally be excluded where the opposing party has had no fair opportunity to address them in evidence.

The claimants sought delivery up of refinancing files relating to residential properties. The defendant solicitor firm contended that the original files had been loaned to the claimants in 2012 and had not been returned. The claimants disputed that account and alleged that correspondence relied upon by the defendant had been fabricated.

The court considered the parties’ evidence, the contemporaneous correspondence, alleged inconsistencies in letters, disclosure failures and documents produced only with closing submissions. The central issue was whether the original files had been returned to the defendant or had remained with the claimants.

1. The court declined to consider documents produced by the defendant for the first time with closing submissions. They had not appeared in the disclosure list or trial bundles, and no adequate explanation was given for their late production. The claimants had not had a fair opportunity to deal with them in evidence.
2. The question whether the files had been returned was determined on the balance of probabilities. The court assessed the contemporaneous correspondence alongside the oral evidence and the parties’ explanations for inconsistencies.
3. Incorrect postcodes, inconsistent file numbers, duplicate letters, dating irregularities and failures in disclosure were insufficient, individually or cumulatively, to establish that the correspondence had been fabricated. The court accepted that some letters might not have been received, but found that the relevant November and December 2012 correspondence had been sent and received.
4. The contemporaneous correspondence was the best evidence of what had occurred. It supported the conclusion that the original files had been loaned to the claimants in 2012 and had not been returned. Copies later provided to the claimants’ legal team were found to be copies held by Howard Kennedy, rather than the original files.
5. The claim for delivery up was dismissed.