The High Court has dismissed two conjoined appeals and confirmed that the court has no jurisdiction to make orders under the inherent jurisdiction over its officers or section 68 of the Solicitors Act 1974 (SA 1974), relating to documents which are the property of the solicitors.
The appeals concerned former clients of the defendant solicitors seeking copies of documents belonging to the solicitors on their files in order to determine whether to seek an assessment of costs. In each case, a costs judge had refused to make the order.
After considering the parties’ submissions, Soole J reached his conclusion, for which he gave several reasons:
- An order for delivery up of property belonging to another must have an explicit legal basis.
- The powers referred to in section 68 (to make orders for delivery by a solicitor of a bill of costs and for delivery up of documents) are derived from the inherent jurisdiction, not the statute itself. Therefore, the scope of the jurisdiction must be derived from authority, rather than interpretation of the statutory language.
- The decisions relied on by the appellants did not assist. In most cases, the exercise of the jurisdiction to order delivery up turned on whether the documents belonged to the client or the solicitor.
- The critical requirement of ownership could not be overcome by reference to the language of section 68, the overall purpose of the SA 1974, analogy with CPR 31.16 or the requirements of PD 46.6.4 (to include the bill or conditional fee agreement (CFA) or copies of them with an application for an assessment under the SA 1974).
Accordingly, the judge disagreed with the decisions in The Mortgage Business plc and others v Taggart [2014] NICh 14 and Swain v JC&A Ltd [2018] EWHC B3 (Costs) because none of the considerations in those decisions could defeat the principle of ownership.
Given that there are “numerous” pending applications on this point, particularly in the context of low-value personal injury claims funded by CFAs, it is helpful to now have this clear and authoritative judgment. Solicitors might nevertheless note the judge’s plea that they not always “press their legal rights to the limit” and it should also be said that challenges to solicitor and client costs are unlikely to go away as a result of this decision.
Case: Hanley v JC&A Solicitors [2018] EWHC 2592 (QB) (28 September 2018)(Soole J).
Credits to: Practical Law
