Ex-Clients are not entitled to copies of claim files

Whale v Mooney Everett Solicitors [2018] EWHC B10 (Costs) (12 June 2018)

The High Court has refused a request from a former client to get a second look at his case files in order to challenge a law firm’s costs.  

The case is another in a growing number of judgments where the Court has denied access to the Solicitors’ papers to help a Client who suspects he has been overcharged.

The background of this case is that the Defendant acted for the Claimant in recovering damages following a road traffic accident on 26 October 2015. The claim settled at the end of 2016 and the Claimant admitted that at that time he assumed that he had been charged correctly.

On his evidence, the Claimant did not become concerned about the Defendant’s charges until the Defendant refunded to him, in August 2017, an amount representing the cost of his ATE premium. Thereafter the Claimant decided to bring a potential claim over the deduction of costs from the settlement of the claim. However, he admitted that he had not kept copies of the funding documents.

The Claimant instructed Costs Lawyers who wrote to the Defendant and requested to provide all documents relating to their former client’s claim. The Defendant has requested a fee of £405.00 inclusive of VAT for provision of the papers. Thereafter an Application for the delivery of documents under section 68(1) of the Solicitors Act 1974 has been made by the Claimant’s new solicitors.

The Claimant argues that it is for the Defendant to show that its dealings with the Claimant were fair. This was relied upon in respect of both the application for delivery of documents which the Defendant is not willing to supply, and the Claimant’s refusal to pay the charge sought by the Defendant for the documents which the Defendant is willing to supply.

Further, the Claimant argued that “the provisions of the Solicitors’ Accounts Rules concerning receipt, handling, transfer and record-keeping in respect of monies received or held on behalf of the client have a bearing upon the prospective exercise of any rights under Section 70 of the 1974 Solicitors Act for assessment of the Defendant’s costs, and insofar as any invoices have been paid, whether directly, or by deduction otherwise, by the Claimant, they should be provided to the Claimant.” In section 68, in particular, the Claimant’s lawyers argued that the Act allowed the High Court to make orders for the delivery of a Bill of costs.

However, Master Leonard, sitting in the Senior Courts Costs Office, did not agree with the Claimant. He said that there was no evidence of misconduct on the part of the law firm to justify any order. The Claimant, the judge said, was not owed any fiduciary duties relating to documents that did not belong to him.

He added: “If as the evidence indicates the Claimant was, during and on the conclusion of the retainer, sent sufficient information to take any necessary advice on applying for the assessment of the Defendant’s costs, then no imbalance exists in any material sense. It is not suggested that the Claimant was in some way incapable of keeping an adequate record. He just did not do so.”

Master Leonard continued: “the Claimant was given all the information he needed to exercise his statutory rights, and it is not the Defendant’s fault that he did not retain it”.

In conclusion he ruled that “upon payment of the fee required by the Defendant under the terms of its retainer, the Claimant is entitled to receive from the Defendant the correspondence entered into by the Defendant on his behalf with third parties, whether sent or received by the Defendant.” However, the Judge refused to accept that “it would have been appropriate to order the Defendant to supply to the Claimant copies of the Defendant’s internal records or further copies of funding documentation already sent to him on more than one occasion”.

Tanya Bland