File Disclosure in a Professional Negligence Claim

In a recent decision, the High Court confirmed that a firm of solicitors could not refuse to disclose its file of papers if a former client brings a professional negligence claim against the firm, even if that client owes fees to the solicitor and the solicitor asserts a “lien” over the file.

In the case of Ellis v John Hodge Solicitors, the court decided that solicitors cannot rely on their lien to avoid disclosing their file of papers as part of its obligations in a professional negligence action. 

Parties in litigation have strict disclosure obligations, which are governed by various parts of the Civil Procedure Rules (CPR), depending on the complexity and value of a case. At the initial stage, the solicitors, in this case, were required to provide disclosure but claimed they could not comply with their obligations because they were exercising a lien over Mr Ellis’s file of papers due to unpaid fees. 

Both sides agreed that the contents of the file were relevant to the issues in the case, and in normal circumstances, there would be no question that the solicitors should disclose the file unconditionally. However, because they were owed fees by Mr Ellis, they offered to disclose the file to Mr Ellis’s solicitors on a conditional basis: they required the solicitors representing Mr Ellis to agree not to share its contents with him. Mr Ellis argued that John Hodge Solicitors were required by the Civil Procedure Rules to disclose the file regardless of whether they were owed fees.

The court decided in this case that having a lien over a client’s file of papers does not mean the solicitors are not required to disclose the file in professional negligence proceedings. However, the court can choose to either allow or refuse to allow inspection of the file by the other party in circumstances where the solicitors have a lien over it. 

In reaching this decision, the court set out a number of factors which must be taken into consideration, including which is more disadvantageous - the disadvantage caused to the claimant if they were prevented from seeing the file or the disadvantage caused to the solicitors if disclosure is ordered (as the value of the lien will be affected if the claimant obtains the file).  

The court decided the file should be disclosed in this case without measures to prevent Mr Ellis from seeing the contents. The judge came to this decision on the basis that Mr Ellis would not have been able to properly proceed with his claim (and defend the solicitors’ counterclaim for unpaid fees) without seeing the file. The judge also considered the lien would lose its value even if Mr Ellis didn’t see the contents of the file because he would still be told about the contents by his solicitor acting for him in the professional negligence claim.