Pay Up, Or Else' Disclosure Obligations V Solicitors' Liens

• Published date: 13 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Law Firm: Gatehouse Chambers
• Author: Mr Rob Hammond

Ellis v John Hodge Solicitors (a firm) [2022] EWHC 2284 (Comm) concerned a novel argument against disclosure. The Defendant solicitors had formerly been instructed by the Claimant in personal injury litigation. In later professional negligence proceedings against the Defendant, the Claimant sought disclosure of his client file from the personal injury claim. It was common ground that file was disclosable under CPR PD51U, being highly relevant to the Claimant's professional negligence claim and Defendant's counterclaim for unpaid fees. Nevertheless, the Defendant declined disclosure on the basis it was exercising its common law lien for unpaid fees. Accordingly, the issue was not whether the file's specific disclosure should be ordered, but whether a solicitor's common law rights to a lien in respect of costs can restrict CPR disclosure obligations. Read our case comment to find out what justified disclosure, without the usual "Robins" undertakings.

Background

This disclosure application arose in a professional negligence claim brought against a firm of personal injury solicitors. The Claimant argued that during the personal injury matter (the "Underlying Proceedings"), the Defendant failed to advise on the consequences of refusing various offers to settle. In its defence, the Defendant asserted that the Claimant was fully and properly warned of Underlying Proceedings' risks and the consequences of failing to beat offers. It further counterclaimed for unpaid fees.

It was common ground that the client file relating to the Underlying Proceedings was disclosable under PD51U (now PD57AD): it contained key documents on which the Defendant relied, both for its counterclaim and its defence that the Claimant's particulars were misconceived. Disclosure was therefore necessary for the Claimant to know whether his pleaded case could be maintained, and to plead his defence to the Counterclaim.

The Defendant refused to provide initial disclosure of the file, asserting it was exercising a lien over it for unpaid fees. Nevertheless, given its PD51U obligations, the Defendant offered to disclose the file to the Claimant's solicitors upon an undertaking not to disclose it to the Claimant and to return it after perusal, following Robins v Goldingham [1872] LR 13 Eq. 440.

The Issues and the Law

The issues before HHJ Pearce were accordingly (i) whether a solicitor's common law right to a lien in respect of costs could restrict disclosure under the CPR and, (ii) if so, whether...