Kerry Underwood


with 14 comments

In Hanley v JC & A Solicitors and Green v SGI Legal LLP [2018] EWHC 2592(QB).

the Queen’s Bench Division, on appeal from the Senior Courts Costs Office, held that the court had no power to order a solicitor to make and supply to her or his client, or former client, copies of documents which are the property of the solicitor, even if the client/former client was prepared to pay reasonable costs for that task.

The court held that it neither had any inherent jurisdiction in its capacity as a court supervising officers of the court, nor under section 68 of the Solicitors Act 1974.

Thus the High Court upheld the decisions of the Senior Courts Costs Office in each of these cases and overruled the decisions in

Swain v JC & A Ltd [2018] EWHC B3 (Costs) ; and

The Mortgage Business PLC and others v Taggart [2014] NICh 14

a decision of the High Court in Northern Ireland.

These cases are parts of a body of cases involving low value personal injury claims funded by Conditional Fee Agreements, and which have attracted significant judicial attention.

Section 68 of the Solicitors Act 1974 provides:

“(1) the jurisdiction of the High Court to make orders for the delivery by a solicitor of a bill of costs, and for the delivery up of, or otherwise in relation to, any documents in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the High Court.”

Here, in each case, the clients/former clients retained the solicitors in relation to the recovery of compensation for injuries sustained in a road traffic accident and the retainer was a Conditional Fee Agreement entered into after recoverability and limiting the solicitors’ recovery of their success fee to the statutory maximum of 25% of the relevant damages recovered.

Upon settlement of each claim that total percentage, and the After-the-Event premium in addition, was deducted.

In each case the clients instructed fresh solicitors for the initial purpose of obtaining advice on whether to exercise their right to a detailed assessment of the solicitors’ fees pursuant to section 70 of the Solicitors Act 1974 which allows the High Court to make an order for assessment of the solicitor’s bill by the court.

Although the specific facts of the request for documents varies, in the Hanley case JC & A offered to supply copies of documents belonging to them for a fee of £644, based on 4 hours’ work at £161 an hour, and the former clients refused to pay that sum.

In the other case the solicitors refused to supply any documents belonging to themselves.

The case sets out the authorities in detail, both in relation to the Solicitors Act 1974 and the court’s inherent jurisdiction over solicitors in their capacity as officers of the court.

The court held that it had no jurisdiction to make orders under the inherent jurisdiction and/or section 68 of the Solicitors Act 1974 in respect of documents which are the property of the solicitors.

It said that, as a matter of principle, an order for delivery up or otherwise in relation to property belonging to another must have an explicit legal basis.

The powers in section 68 are derived from the inherent jurisdiction of the court, and not from the Solicitors Act itself.

The section simply extends the reach of the jurisdiction to cases in which no business has been done in the High Court.

It reflects the provisions of successive statutes governing solicitors.

Thus the scope of the jurisdiction is to be identified from case law, rather than interpretation of the statute itself.

Here, the High Court found that case law gave no authority for the proposition that the court has a discretion under its inherent jurisdiction to order up delivery of, or make other orders in respect of documents, which belong to the solicitor.

If the document and its contents are the property of the solicitor, which the solicitor is entitled to retain, then there is no basis for circumvention of that proprietary right by some other form of order.

The court referred, with approval, to the publication by the Law Society – “Who owns the file?”

These critical requirements of ownership cannot be overcome by reference to section 68, or the overall purpose of Part III of the Solicitors Act 1974, nor by analogy with the pre-disclosure provisions of CPR 31.6, nor with the court’s powers on a section 70 application, nor with the rationale of the required ingredients of a Statute Bill or the requirements of Practice Direction 46, paragraph 6.4.

The inherent jurisdiction of the court does not provide a form of pre-action disclosure of documents belonging to the solicitor.

In so far as the Law Society’s letter of 28 June 2018 says otherwise, then it is wrong, as are the decisions in Swain and Taggart.

I am grateful to JC & A Solicitors, both for supplying me with the judgment, and for successfully protecting the legal profession.


A helpful and practical decision which it is hoped will end these fishing expeditions and applications.

It is another example of the Superior Courts fighting desperately to preserve a legal and justice system on the point of disintegration.


Written by kerryunderwood

October 3, 2018 at 10:20 am

Posted in Uncategorized

14 Responses

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  1. Kerry, are you by any chance able to share a link to Soole J’s decision please?

    many thanks
    Steve Innes

    Steve Innes

    October 3, 2018 at 4:09 pm

  2. Awful decision, protecting a narrow part of the legal establishment at the expense of most lawyers and the public. Hopefully will be overturned on appeal where some up-to-date authorities can be established – the ones used in this decision pre-date the invention of the photocopier and the typewriter! Interesting there was no mention of costs – is each side picking up their own?

    Even with this poor decision though, it is unlikely these applications will end, given para. 74 of the judgement, which warns of adverse cost consequences for solicitors who fail to provide documents in their possession at a reasonable cost. I predict an increase in applications, but less being disputed in Court, until such time as an appeal allows a modern interpretation of s.68.


    October 13, 2018 at 12:18 pm

    • We are all entitled to our opinions, but my view is that you are wrong about the likelihood of an increase in applications; the courts are taking a robust approach to technical challenges.



      January 8, 2019 at 12:30 pm

      • Fair enough, but the right to see a bill which may well be wrong is fundamental, and in my view it can only be a matter of time until a higher court overturns these decisions. I can’t see why applicants would not wish to be able to enjoy their rights, and I think they’ll continue to use the courts to try to do so. It is more the defence that is technical, relying on it does on outdated statute.

        The situation at the moment just looks like the legal establishment protecting solicitors who may have overcharges, and this benefits nobody.


        February 23, 2019 at 10:46 am

      • I agree that a client should be able to the bill, but generally what has happened is that the client has seen the bill and been happy with it and has then been stirred up to challenge it on a technicality, even though they had agreed the terms and were happy with the bill.

        That explains what may otherwise, I agree, look like a strange policy by the courts.



        February 25, 2019 at 10:18 am

      • If the client has seen the bill and agreed that they’re happy with it then that is one thing, but in a lot of these cases the client hadn’t realised they had been overcharged until they had been made aware, its a bit like PPI mis-selling. Most of these cases are where the solicitor has taken a fixed cut of damages which they weren’t entitled to. The client has a right to a copy of the bill in such cases, I can’t see how a higher court can rule otherwise. Providing a copy of a bill should cost very little.


        February 27, 2019 at 7:16 pm

      • But if a client has agreed a maximum fee, expressed as a percentage of damages, the client is enjoying a far higher degree of protection than a pay by the hour, win or lose retainer and we all know that many clients are being illegally cold-called to stir up claims.

        Having said that, I have no problem with a client always being supplied with a copy of the bill whenever they want.



        February 28, 2019 at 1:48 pm

  3. From a practical point of view. One of our barrister attended a hearing under a S70 application( post the above decision). DJ not swayed by paragraph 74, but did ‘ask’ if production would be a problem. Well – let us see what happens when the next DJ is unmoved and agrees that solicitors can enforce their strict rights with impunity.


    January 8, 2019 at 1:08 pm

    • Solicitors Act 1974 needs a complete re-write. Nearly all of it dates back to Solicitors Act 1843 and much back to Attorneys and Solicitors Act 1729, including the right to charge a contingency fee in a non-contentious matter. Not saying change law for the sake of it, but modern methods of communication, billing and working make a re-write necessary, as the number of confusing cases shows.



      January 8, 2019 at 2:49 pm

      • The problem is that maximum cost should be a maximum and not charged as a matter of course. And cold-calling is a separate matter – it doesn’t justify overcharging.


        July 8, 2019 at 9:04 pm

      • The problem is that many judges and journalists see, for example, the 25% charge as a bonus, whereas the truth is that it is a CAP, giving the client huge protection. The old fashioned uncapped pay by the hour whether you win or lose is the rip off, but too may have a vested interest in keeping that system going.
        Contingency fees for everything monetary is the answer.


        July 12, 2019 at 7:24 pm

  4. Agreed, the problem in these cases is that the cap has been treated as standard instead of a cap in too many cases. Agree on contingency fees, I never understand the ‘head I win tails you lose’ approach.


    July 17, 2019 at 9:47 pm

    • But why should it not be standard? It is a massive piece of client protection, which those unlucky enough to be paying, win or lose, never get.



      July 29, 2019 at 4:06 pm

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