The Law Society of England and Wales (Solicitors Regulation Authority) v Sophie Khan & Co Ltd

A regulatory production notice may require solicitors to provide client files notwithstanding any lien or right to possession. The statutory power is distinct from the court’s jurisdiction to order delivery of files to a client. A party asserting that documents were delivered must prove that fact on the balance of probabilities. The court assesses the totality of the evidence, including conduct, surrounding circumstances, documentary support and inherent likelihood. The absence of evidence from potentially relevant witnesses does not, by itself, require the court to accept the opposing account.

The claimant, the regulator of solicitors in England and Wales, sought enforcement of a notice requiring a solicitor’s firm to produce client files and its complaints procedure. The firm initially raised objections based on a solicitor’s lien, proprietary rights and other matters, but later asserted that the files had been hand-delivered to the claimant’s offices. The claimant disputed delivery. The principal issue at trial was whether delivery had occurred on the date alleged.

1. The claim succeeded. The court found, on the balance of probabilities, that the files had not been delivered to the claimant’s offices.
2. The claimant’s power under section 44 B of the Solicitors Act 1974 was exercisable over documents notwithstanding any lien or right to their possession. The statutory production power was directed to regulatory investigation and was distinct from cases concerning the court’s power to order a solicitor to deliver files to a client.
3. The authorities relied on by the defendant, Green v SGI Legal [2017] EWHC B27 (Costs) and Hanley v JC&A Solicitors [2017] EWHC B28 (Costs), concerned delivery of client files to clients. They were irrelevant to the firm’s obligation to comply with the regulatory notice.
4. In resolving the factual dispute, the court considered the totality of the evidence. The defendant’s evidence was weakened by refusals to answer questions, inconsistencies with the claimant’s deliveries policy and other evidence, lack of corroboration, failure to obtain a receipt or arrange delivery in advance, and failure to confirm delivery promptly. The absence of evidence from the receptionists did not require acceptance of the defendant’s account.
5. The court refused to admit further evidence filed after circulation of the draft judgment. There was no formal application, the evidence could have been adduced at trial, and admitting it would have required reopening the trial with disproportionate consequences.