To each his own: which papers belong to the solicitor?
Although it has previously been established that clients don't necessarily own all of their solicitors' file, clients don't always appreciate this when making a file request. Some recent case law provides support to solicitors when dealing with such requests.
Regular readers of this blog will remember that we have previously reported on what solicitors should do when faced with a request for their file by a client, and the Law Society Guidance as to which documents a solicitor does and doesn't have to hand over. Contrary to popular (disgruntled client) belief, it isn't simply a case of handing over every single piece of paper relating to the client's matter; some documents do actually belong to the solicitor, and they can hold on to them if they want to (disclaimer: this relates to file requests only and not to responding to requests for documents in a letter of claim or dealing with disclosure, both of which have different rules). Our previous blogs (here and here) set out the correct position in detail and provide some useful practical guidance.
However, some Claimants and their solicitors still attempt to circumvent the rules. Solicitors and their insurers will no doubt be pleased to learn that, despite this, the courts are upholding the true position, and a recent judgment may be of some assistance to those firms who are still being met with such requests from those who don't understand or want to ignore the rules. In Hanley v JC & A Solicitors, the Claimant sought delivery up of copies of parts of the file over which he had no proprietary rights. The Defendant solicitors resisted the request, and so the matter made its way to the courts. Justice prevailed and the Master said that she was "concerned by the floodgates that would likely be opened" were there to be a ruling that solicitors could be ordered to hand over their complete file, as considerable satellite litigation would likely ensue. This follows previous similar rulings in December 2017 so the courts seem to be aligned in this regard.
The specific facts of these cases may also be of interest to solicitors and their professional indemnity insurers as, in each, the Claimant sought belatedly to challenge his former solicitors' bill only after being contacted by a Claimant firm of solicitors as part of a 'marketing push'. It seems that they had not previously had any concerns over their bills until receipt of the marketing materials. There is a growing concern in the market and amongst the judiciary (as reported in the Law Society Gazette and in Green & Ors v SGI Legal LLP) that some such Claimant firms are running fishing expeditions (which are, of course, expressly prohibited by the Pre-Action Protocol for Professional Negligence), in respect of old bills in particular. Whilst fishing expeditions are something that defendant professional indemnity solicitors and insurers will regrettably be more than familiar with, it is good to know that – for now at least – the courts are supportive on this issue and the existing guidance on dealing with file requests can be followed with confidence.