Most compliance managers or complaints partners will experience that sinking feeling when yet another file request lands on their desks, often with the distinct aroma of a 'fishing expedition'. But exactly what is the solicitor obliged to hand over in those circumstances (and in the event of a subsequent delivery up application under s68(1) of the Solicitors Act 1974)? This is a rather dusty corner of law and the cases are not exactly contemporaneous, although a recent outing to the court suggests they remain good law.
There is a popular misconception that the client is entitled to 'the file' i.e. that the solicitor holds a file, whether paper or electronic, which contains every document which relates to a client's matter and that the client is entitled to have that file and each and every document in it. This is incorrect, as the Law Society's Guidance on the subject confirms. In fact, usually within a 'file', there will be documents which belong to the solicitor as well as the client and, as such, the solicitor is not required simply to hand them over on request. He must only hand over those documents which actually belong to his client and, for the purposes of delivery up, any question of relevance can be parked entirely (as can be seen by Ex p Cobdeldick and Gomba Holdings UK Ltd v Minories Finance Ltd). He does not have to give the client anything that belongs to him. The question for the court is solely one of ownership.
Essentially there are two broad principles to consider: (a) did the document come into existence for the purposes of giving advice to the client or as a result of the solicitor acting as the client's agent; and (b) for whose benefit and/or protection was the document prepared. If the solicitor only obtained a document in the course of acting as the client's agent (e.g. an expert report or correspondence from an opponent or third party), this will belong to the client and the solicitor will have to give it to the client. If not, and the document relates to advice, we move on to the second test.
The solicitor is not obliged to hand over the following categories of documents:
- Correspondence written from the client to the solicitor - ownership of the original letter passes to the solicitor once the client has sent it (Re Thomson and Re Wheatcroft);
- Copies of letters sent by the solicitor to the client - ownership of the original letters passes to the client and the copies have been prepared for the solicitor's benefit and protection, not the client (again, Re Thomson and Re Wheatcroft);
- Attendance notes, working notes, diary notes etc of the solicitor's attendances upon the client - again these are prepared for the benefit and protection of the solicitor (Leicestershire CC v Michael Faraday and Partners Ltd);
- Other documents prepared solely for the solicitor's benefit such as timesheets, accounts documents and internal memoranda.
In fact, even if the client has paid for the preparation of attendance notes, this will not necessarily entitle him or her to them. The client would not even see the attendance notes in the normal course of the matter. Both these notes and copies of any correspondence sent to the client have been prepared for the solicitor's benefit i.e. in helping the solicitor to remember what advice was given to the client, and to protect his position in the event of a claim being brought. There is no benefit in these documents to the client; the client has had the benefit of the oral advice which was the subject of the notes, and has received the original letters.
Therefore, a solicitor can decline any request for a 'file' of documents and only provide those which the client is actually entitled to. Sometimes it may be tactically advantageous just to give the client 'the lot', but the solicitor doesn't have to if it he doesn't want to, and certainly shouldn't feel that he is under an obligation. It is also worth remembering that the pre-action protocol for professional negligence expressly prohibits fishing expeditions, something which many claimant lawyers overlook when making the request. It is only upon receipt of a properly drafted letter of claim with properly formed allegations that the question of disclosure – and consequently relevance of documents - comes into play.