Hands off: the concept of ownership in file requests concerning a solicitor’s telephone recordings

Recent years have seen many file requests cases before the courts, most often associated with bill challenges. Recently, in Turner, while the underlying file had been disclosed to the claimant’s solicitors, they also sought the disclosure of all the telephone recordings. The defendant resisted, describing the request as a ‘fishing expedition’. While the application fell on stony ground for mostly procedural reasons, regarding telephone recordings in particular, Costs Judge Rowley expressed that “call recordings would not be on a solicitor’s file but, if anywhere, in some IT backup of presumably thousands of calls taken by the solicitors over time” and that “the claimant would have to put forward extremely cogent evidence to justify any of the call recordings being searched for and, if found, made available.”

Notwithstanding the above specific points, a very familiar point in such file requests cases arose the ‘property’ or ‘ownership’ point, i.e., the general principle that the client is only entitled to those documents which they have ownership of.

Ownership

On this issue, the claimant relied upon Yasuda Fire & Marine Insurance Company of Europe Ltd v Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174, in which a claimant was entitled to inspect and to make extracts and copies of various records that were the property of the defendant, being the claimant’s former underwriting agent.

The court however held that the purpose of the call recordings was most likely a defensive mechanism, analogous to notes written by a solicitor for his own benefit in the file and: “Such documents are not ones to which the client is entitled. They are usually disclosed in detailed assessment proceedings to justify the time claimed. Nevertheless, they are the property of the solicitors rather than the client.”

In the following paragraph, when turning to distinguishing Yasuda more specifically, the court’s reasoning appears to have been a mixture of both the ‘within vs beyond the file’ point and the ‘ownership’ point:

“But as far as the submission that [Yasuda] entitles the client to call recordings […]. […]. I consider that to be more than a step too far. Such recordings have never been part of the solicitors’ file and it is to that file which the client has ever had access in Solicitors Act proceedings. As I have indicated in the previous paragraph, even if the call recordings are part of the solicitors’ file, contrary to my view, then they are part of the working notes and similar documents which remain the solicitors’ property rather than the client’s [...]. […]. I do not consider that they would need to be disclosed even where the parties have agreed that the ‘solicitors’ file’ should be disclosed […].”

Concluding this point, the court held that there would need to be a higher judicial authority, as well as some evidence as to the facility of locating the recordings to determine that they should become part of the file of papers that the client is entitled to, “not least because of the logistical difficulties that would almost certainly entail […] […] in the organisation of solicitors’ practices.”

Conclusion

Ultimately, while the court appears to have placed more weight on the ‘within vs beyond the file’ point (and the logistical ramifications), it appears to this author somewhat optimistic of the claimant in this case to have hoped to have used Yasuda to overcome the well-established ‘ownership’ point in respect of solicitors’ property in file request challenges. 

Indeed, the claimant also sought to rely upon Yasuda later in the same hearing in connection with obtaining after the event policy information, leaving the court evidently uncomfortable with how potent Yasuda was being portrayed as: “The support that Yasuda was said to give to obtaining the call recordings in the first application, since they would be a computer record, demonstrates how wide-ranging the decision in Yasuda was said to travel.”

The general principle, as per Wheatcroft and Thompson evidently remains (as confirmed in Hanley v J C & A Solicitors [2018] EWHC 2592 (QB), and others), i.e., that a client is not entitled to items that are the solicitor’s property and it would be anticipated that, in the vast majority of scenarios, telephone recordings would fall into that category.

James Winterbottom is a senior solicitor at Aston Knight Solicitors
astonknightsolicitors.co.uk