The High Court declined to order a former solicitor to release case files to two clients who had not paid his outstanding fees. It also declined to declare that the solicitor was not entitled to rely on a lien over the files.
In a judgment delivered on 6 June 2019, Mr Justice Max Barrett said the underlying proceedings had already been determined. The clients had instructed a new firm and sought the files so it could assess whether they had a well-founded negligence claim against their former solicitor, Mr Battles.
The judge distinguished the clients’ cited cases, which concerned release of papers during ongoing proceedings. He said that ordering release after proceedings had ended, where fees remained unpaid and negligence had not been established, would undermine the solicitor’s lien. He also rejected the suggestion that releasing the files subject to an undertaking to return them would preserve the lien.
One client had asserted that neither client received a preliminary “s.68 letter” identifying Mr Battles’ fees. The court treated this as a bare assertion and said it did not alter its conclusion. The clients would first have to pay the outstanding fees for completed work to obtain their files.
The court also said, in passing, that the application should have been brought by special summons rather than by motion in the concluded proceedings, to which Mr Battles was not a party. It said the clients had made only bald allegations about why they ended the retainer and had not established reasonable cause. Accordingly, the court made no declaration that the former solicitor was not entitled to exercise a lien.