The issue of who owns the solicitor’s file and whether the client or their new representatives are entitled to demand that it be handed over to them is one that arises from time to time, especially when the client has become unhappy about the services that have been provided to date or after the matter has completed. A number of decisions have recently emerged in relation to attempts to question fees charged by claimant personal injury firms where, post LASPO, the success fee and insurance costs were taken from the clients’ damages rather than having been paid by the insurers as was previously the case. All such claims depend upon the claimant being able to obtain or re-constitute the original file.
Strangely, perhaps, given how frequently such disputes emerge, there has been little to date in the way of definitive legal or professional guidance on the ownership of files. There are, however, no shortage of case decisions, some of them dating back to the mid-19th century when, of course, copying documents was a very much more laborious task than it has since become. The general thrust of cases such as Re Thompson 1855 and Re Wheatcroft 1877 was that:
- copy letters created on the file by the solicitor belonged to them so would not be ordered to be handed over to the client;
- copy letters written by the solicitor to the client also belonged to the adviser and so could be retained by them; but that
- letters received from third parties by the solicitor on the client’s behalf had been received as the client’s agent and would therefore belong to the client.
In relation to those items of correspondence which belong to the adviser, there are then further issues as to whether the client is therefore entitled to copies to be made of them at their reasonable expense. In the various cases now being reported, one of the main issues receiving attention is whether the client is entitled to receive a copy of their conditional fee agreement so as to be able to reopen the issue of fees paid and question a final bill under the provisions of Part III of the Solicitors Act 1974.
As to the professional guidelines on this issue, little has been made available since the section in the former “Guide to the Professional Conduct of Solicitors” published in 1999 which provided, at Annex 12 (page 253 if a copy is to hand), that:
- documents prepared by the adviser for the client which were paid for by the client belong to them, and so would include most attendance notes, drafts, copy letters received by the firm on the client’s behalf and copy letters prepared by the adviser for third parties on the client’s behalf;
- internal documents, such as notes of research, internal communications, diary entries but (rather curiously) “the preparation of which is not regarded as an item chargeable against the client” belong to the firm; and that
- although documents sent to the adviser by the client during the retainer become the firm’s property documents prepared by a third party and received by the firm will belong to the client.
Perhaps reflecting how much of a growing problem this is the Law Society issued a practice note on this topic in March 2017. These practice notes now have restricted availability but can be accessed by solicitors if they enrol onto that part of the Law Society’s website.
In the Society’s view, and based on later case law, the “ownership of documents depends on the purpose of the retainer and whether the production of documents was a stipulation of the retainer”. On this basis they suggest that final versions of documents required by the retainer will belong to the client, as will final documents prepared by third parties including the client’s other advisers. To this there is the important caveat, however, that the solicitor will still nonetheless be entitled to a lien in relation to papers belonging to the client in relation to unpaid fees though the circumstances where it might be unprofessional to enforce it have also been unclear for some time.
Within one of the more significant such applications reported of late – Hanley v J C &A Solicitors Ltd  EWHC B28 (Costs) – Master James expressed clear concerns about a possible floodgate of such claims being brought to court if copies of the solicitors’ documents were always to be ordered to be made available, and also expressed the opinion that “there is currently no [binding] case in which the Solicitors have been Ordered to hand over papers over which they (rather than the Clients) have proprietorial rights” (para 57).
There have been suggestions that to the extent that this issue might cause future problems, firms might wish to consider setting out in their terms of business what their policy will be in relation to any future requests for files to be provided to clients after the end of the retainer and, in particular, which items will not be made available and what costs might be charged for checking the file and copying those items that will be made available.
Finally, all such issues do, of course, impact on the rights of data subjects which will clearly be an issue to which we will often return this year as we approach the implementation of the GDPR.