The Issues:

The Claimant suffered an RTA injury in 2015 and successfully recovered damages. His solicitors deducted a 25% success fee plus a £198.75 ATE premium (totalling £1,086.25) from his general damages of £3,500.00. The claimant instructed new solicitors to challenge the deductions made from damages by his former solicitors.

The Claimant did not have a full copy of his file. Two years after he had paid his solicitor’s bill he did not commence detailed assessment proceedings but instead applied to the court for disclosure Orders pursuant to section 68 of the Solicitors Act 1974 and/or the inherent jurisdiction of the High Court over Solicitors/s.7(9) Data Protection Act 1998. It was common ground that the claimant was entitled to copies of any papers for which he had been billed. The issues were:

1. what should he pay for the copies - 10p/25p per sheet, or an hourly rate for sifting the file
2. could he have copies of the solicitor’s peripheral papers (agreements with medical agencies, ATE providers, and other documents) for which the client had not been billed and which did not belong to the client.

Held:

In relation to a) above, Master Jennifer James, sitting in the Senior Courts Costs Office held that payment of an amount per sheet (for the client’s own papers) was not the correct approach. An hourly rate should be paid for perusing the file (although the 4 hours claimed by the defendant was highly excessive).

Master James refused to make an order under b) above and held that “there is currently no [binding] decided case in which Solicitors have been Ordered to hand over papers over which they (rather than the Clients) have proprietorial rights”.

The Master went on to state that she was “concerned by the floodgates that would likely be opened by a ruling that Solicitors can be Ordered to hand over their complete file in circumstances such as these; such a move would foreseeably instil considerable satellite litigation and I am not persuaded that this would be a positive step”.

Comment:

The judgement records that there is a growing industry in attempting to challenge solicitor deductions from personal injury damages. The client did not want to commence speculative detailed assessment proceedings, because this would involve a considerable costs risk. Instead, the solicitors acting on a large number of these cases wanted a ruling that they could see papers which did not belong to the client, in particular so that they could see arrangements made with various organisations and other documents which the client had not been charged for.

This was therefore a highly strategic approach and the court was rightly concerned that it would generate a new industry challenging success fees and ATE premiums which had been agreed with the solicitor in the CFA/client care letter at the outset. It is with this risk in mind that the application appears to have been refused, and many solicitors will breathe a sigh of relief in hopefully not having to deal with speculative claims in relation to matters invoiced long ago.

VIEW THE JUDGEMENT HERE - [PDF]

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