Our director Mark Carlisle appeared as advocate for JG Solicitors of Leeds in the most recent in a line of cases considering whether the court had jurisdiction to order solicitors to provide copies of documents relating to the funding of a case, so that the client could consider whether or not to challenge the legal fees that had been raised.
In previous decision the Court had found that it did not have jurisdiction so that if, for example, the client had lost the bills or funding arrangements, their ability to challenge any deduction were severely restricted.
In a judgment handed down today Master Brown reached a different decision, concluding that the court does have jurisdiction under s.68 Solicitors Act 1974 to order production of copies of documents, whether or not a proprietary right in the relevant documents has been established.
This is a real victory for clients - it means that solicitors cannot hide behind a technical argument to withhold documents that have been lost or (because you did not think you would need them) discarded, or in some cases never even sent. It is a completely new interpretation of the law, and potentially changes what has been perceived as the correct interpretation since as long ago as 1855.
We say "potentially changes" because, as the Master recognises, this is an issue that should perhaps be considered on appeal by a Higher Court.
So, why have firms been keen to avoid disclosing their funding documents?
The reluctance can, perhaps, be explained by some of the findings in this case – a rate of £250 per hour for a grade D fee earner is simply unsupportable. It is just over 225% of the appropriate guideline rate. It is also quite extraordinary the lengths that this particular firm have gone to try to avoid disclosure in this case – going as far as making direct contact with their former client notwithstanding that new solicitors were on the record, telling him (quite wrongly, and without a shred of evidence) that the application was defective and that he might face a bill from his own solicitors, and then purporting to deliver a new bill which, if unchallenged, would have left this client with only one third of his damages figure.