Ownership of documents on a solicitor’s file

This post is like a case book(let) rather than a text. It sets out the raw materials which bear upon the question of who as between solicitor and client owns (in the sense of is entitled to the original of) what documents typically found in a solicitor’s file. It is very long, and largely unsummarised: a resource to go back to rather than something to trawl through now. It is the product of reading Wentworth v De Montfort (1988) 15 NSWLR 348 (the subject of this separate companion post), the leading case on the question in NSW, and the cases which have considered it since. One day, hopefully, I will do a shorter post summarising the principles.

The state of the law is a scandal. For a start, it is ridiculously uncertain. To the extent it is certain, it is ridiculously difficult to interpret. These deficiencies give rise to abuse. An appropriate law would be that every client ought to be entitled to inspect the whole of a solicitor’s file, and ought to be able to have the whole of the original. Even smart institutional clients do not stipulate for this when negotiating retainers. Presently, the law (or an interpretation of it which is universally tolerated in Victoria) allows solicitors to take bits out of the file and give the client only what remains, so as to leave them with an incomplete whole, a thing without internal integrity, nothing but one part of the jigsaw of the past, an aid rather than a map for the reconstruction of past events. It is little known that the lien will trump an obligation in the solicitor to discover the file to the client (though the solicitor must discover the file to others). In fact, the solicitor is obliged to give discovery but not to allow inspection: Hammerstone Pty Ltd v Lewis [1994] 2 Qd R 267, a case I have caused to be put into play successfully twice, once in the Magistrates’ Court and once in VCAT’s Legal Practice List.

Solicitors’ Professional Conduct and Practice Rules, 2005 (‘7. Ownership of Clients’ Documents – Termination of Engagement’) provides that a practitioner must keep certain documents from a file securely until the client asks for them following the termination of the retainer, and must then give them to the client except where a lien for unpaid costs is asserted. Where a lien is asserted, they must be handed over upon the client offering adequate security for the unpaid costs. Where it was the solicitor who broke off the retainer, a lien is asserted, and the client has retained new solicitors, the solicitor must deal with the documents which are the subject of rule 7 in accordance with r. 23.4 (see below). So what is this class of documents on solicitors’ files which are the subject of the rules for preservation of a file and for handing it over on request? Rule 7.5 defines them:

‘7.5 For the purposes of rule 7, the documents to which a client of a practitioner is
entitled include:-

7.5.1 documents prepared by a practitioner for the client, or predominantly for the purposes of the client, for the purposes of the client’s matter; and

7.5.2 documents received by a practitioner from a third party for or on behalf of the client or intended for the use or information of the client, for the purposes of a client’s matter.’

Rule 23.4, referred to above, and rule 23.5 say:

‘23.4 If the first practitioner has terminated the engagement and the client’s documents are essential to the defence or prosecution of current proceedings which are continuing before a Court, the practitioner must surrender possession of the documents to the client, upon receiving satisfactory security for the unpaid costs, or to the second practitioner, if so directed by the client, and, provided that the second practitioner –

23.4.1 holds the documents subject to the first practitioner’s lien, if that is practicable, and provides reasonable security for the payment of the first practitioner’s costs; or

23.4.2 enters into an agreement with the client and the first practitioner to procure payment of the first practitioner’s costs upon completion of the relevant proceedings.

23.5 A practitioner who receives a client’s documents from another practitioner pursuant to an agreement between the client and both practitioners, which provides that the practitioner receiving the documents will pay the first practitioner’s costs from money recovered on the client’s behalf in respect of the matter to which the documents relate, must do all things which are reasonably practicable on the practitioner’s part to ensure compliance with the agreement.’

‘Prepared for the client, or predominantly for the purposes of the client’ and ‘received for or on behalf of the client or intended for the use or information of the client’ are not too clear in their meaning. One needs to look to the cases to understand what those expressions mean.

In Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205 (in the words of Hope JA of the Supreme Court of New South Wales in Wentworth v De Montfort (1988) 15 NSWLR 348)

‘a company carrying on business as rating valuers was employed by a county council for five years to give advice and assistance in connection with the valuation of land within its area and for related purposes. At the expiration of the engagement the council brought proceedings for the recovery of all documents, books, maps and plans which had been prepared by, or had come into the possession of, the valuers in the course of or for the purpose of the performance of their duties. Macnaghten J at first instance and the Court of Appeal rejected their claim. MacKinnon LJ said (at 215-216):

“If there is nothing in the contract on which the plaintiffs can rely to establish that they are right in saying that these pieces of paper are their property, by what rule of law otherwise can they assert that that is so? I know of none. Some reference has been made to, and reliance placed on, one or two cases which were cited by Mr Macaskie, such as Lady Beresford v Driver 20 LJ (Ch) 476; 22 LJ (Ch) 407 and Gibbon v Pease [1905] 1 KB 810, but I think that those cases are radically different from the present case, as being concerned with the relative rights and duties of principal and agent. If an agent brings into existence certain documents while in the employment of his principal, they are the principal’s documents and the principal can claim that the agent should hand them over, but the present case is emphatically not one of principal and agent. It is a case of the relations between a client and a professional man to whom the client resorts for advice. I think it would be entirely wrong to extend to such a relation what may be the legal result of the quite different relation of principal and agent. These pieces of paper, as it seems to me, cannot be shown to be in any sense the property of the plaintiffs, any more, as I suggested to Mr Macaskie during the argument, than his solicitor client or his lay client could assert that his notes of the argument he addressed to us could be claimed to be delivered up by him when the case is over either to the solicitor or to the lay client. They are documents which he has prepared for his own assistance in carrying out his expert work, not documents brought into existence by an agent on behalf of his principal, and, therefore, they cannot be said to be the property of the principal.”

Goddard and Du Parcq LLJ agreed. In the course of his short reasons Goddard LJ referred to the decision of A L Smith J in London School Board v Northcroft which apparently was reported in (1889) Hudson’s BC, 4th ed, vol 2, at 147. It was a case where it was held that detinue would not lie for memoranda which were in the possession of quantity surveyors who had been employed by the London School Board and which the quantity surveyors had prepared for their own use in measuring up certain buildings.

A L Smith J (at 149), quoted in [1941] 2 KB 217 said:

“Now I should like to know how it can be said that what I call the private memoranda, which were made by Messrs Northcroft for the purpose of framing that which ultimately became the property of the plaintiffs, namely, the bill of quantities, ever became the property of the plaintiffs. The paper belonged to Messrs Northcroft, the ink belonged to Messrs Northcroft, and the brains that put the calculations on paper belonged to Messrs Northcroft, and I want to know how that document which came into existence ever became the property of the plaintiffs. In my judgment it never did, and therefore the demand which was made … for the return of this manuscript was illfounded in law.”

In Chantrey Martin (A Firm) v Martin [1953] 2 QB 286 (in the words of Hope JA of the Supreme Court of New South Wales in Wentworth v De Montfort (1988) 15 NSWLR 348):

‘Martin had been an employee of Chantrey Martin and had been dismissed for alleged breach of contract. Chantrey Martin sued their former employee to recover salary which had been paid in advance and otherwise and Martin counter-claimed for wrongful dismissal. In his particulars Martin made certain allegations about irregularities he claimed to have found in the books of a company client of Chantrey Martin. He made an application for the production of certain documents relating to the auditing of the client company’s accounts, but for which Chantrey Martin claimed privilege on the ground that they were the property of the company client. The judgment of the Court of Appeal was given by Jenkins LJ who, having discussed Leicestershire County Council and London School Board, concluded that apart from correspondence with the Inland Revenue and the client company’s own ledgers the documents were the property of Chantrey Martin. His Lordship distinguished Ex parte Horsfall (1827) 7 B & C 528; 108 ER 820, as turning on the nature of the services rendered by an attorney or solicitor and the system upon which he is remunerated for those services. His Lordship went on to say (at 293):

“… Even in the case of a solicitor there must, we should have thought, be instances of memoranda, notes, etc, made by him for his own information in the course of his business which remain his property, although brought into existence in connexion with work done for clients.”

As regards the Inland Revenue documents, which comprised letters received from the Inland Revenue and copies of letters written to the Inland Revenue, his Lordship held that in conducting this correspondence the plaintiffs must have been acting as agents for the client company for the purpose of settling with the Inland Revenue the client company’s tax liability. It was held that these letters were the property of the client company.’

Wentworth v De Montfort (1988) 15 NSWLR 348 was an appeal from the determination of 12 preliminary questions of law: who as between solicitor and client owned documents in each of 12 classes of documents from the file maintained by Ms Wentworth’s solicitors Sly and Russell which was in issue. As the case with the most detailed consideration of the issue from a solicitor’s point of view, it gets its own post, which should be read before continuing.

In Breen v Williams (1996) 186 CLR 71; (1996) 138 ALR 259; [1995] HCA 63, the appellant Breen was the patient, and the respondent Williams the doctor in a tussle over a desire in the patient to inspect and copy (but not otherwise to take possession of) the documents comprising her medical records held by her doctor. (Confusingly, the patient’s advocate was one Dr Cashman, a fact worth knowing if you are casually scanning the decision.) The Court said the doctor did not have to grant inspection or give copies.

Chief Justice Brennan said:

Property

The appellant concedes that the property in the records as chattels is in the respondent. The concession is rightly made. Documents prepared by a professional person to assist the professional to perform his or her professional duties are not the property of the lay client; they remain the property of the professional.[Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205 at 216; Chantrey Martin (a firm) v Martin [1953] 2 QB 286]In the light of that principle, it is not easy to see what relevance the law of property has to the supposed right of the appellant to access to the respondent’s records. If (as it was put during argument) the respondent is said to have no proprietary right that would entitle him to refuse access, the question whether the appellant has a right to be given access still remains. On that approach, the supposed right (if any) must find some basis other than property. But even on that approach, the argument is flawed. Absent some right to require, or the exercise of some power to compel, production of a document for inspection, its owner is entitled by virtue of the rights of ownership to refuse to produce it. As for copying, where the professional person is the owner of the copyright, he or she has the sole right to copy or to permit the copying of the document. [Copyright Act, 1968 (Cth) ss 13, 31, 36; Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 58 ; 32 ALR 485]’

Justices Dawson and Toohey said

Proprietary right or interest

The appellant did not claim ownership of the actual documents comprising her medical records. It is understandable that she did not do so, because they do not include any documents obtained on her behalf and paid for by her, such as x-ray photographs or pathology reports, the ownership of which she may well be able to claim. As we have said, for all practical purposes they comprise the written notes of the respondent and with respect to these there can be no doubt that they are the property of the respondent. The duty of the respondent, both in contract and tort, was to exercise reasonable care and skill in giving treatment and advice [See Rogers v Whitaker (1992) 175 CLR 479 at 483 ; 109 ALR 625] and it was in carrying out this duty that the respondent compiled the records. In doing so the respondent did not act as agent for the appellant and the documents were his property alone. The general principle is that documents brought into existence by an agent while in the employ of a principal belong to the principal and not to the agent. [Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205 at 216.] Of course, sometimes in a relationship between a professional and a client, the professional may act as an agent in the course of providing services in which case documents brought into existence may be the property of the client. For example, a contract or deed produced by a solicitor for a client and paid for by the client is the property of the client. On the other hand, as was observed in Chantrey Martin v Martin[[1953] 2 QB 286 at 293. See also Wentworth v De Montfort (1988) 15 NSWLR 348 where the authorities are discussed]

‘Even in the case of a solicitor there must, we should have thought, be instances of memoranda, notes, etc, made by him for his own information in the course of his business which remain his property, although brought into existence in connection with work done for clients.’

In this case, the appellant’s medical records were clearly compiled by the respondent for his own information in treating and advising the appellant and not in any sense as agent for the appellant. The appellant was correct, in our view, in not seeking to contest the ownership by the respondent of the records.’

Justices Gaudron and McHugh said:

Did Ms Breen have a proprietary right or interest in the medical records?

[Ms Breen’s counsel] did not submit that Ms Breen owned the actual documents which comprised the medical file. She did not, he said, “seek to divest the doctor of the pieces of paper” comprising the records. The concession that Ms Breen did not own the documents was plainly correct. Professional persons are not ordinarily agents of their clients even though they often have express, implied or ostensible authority to enter into contracts on their clients’ behalf. Documents prepared by an agent are ordinarily the property of the principal. But documents prepared by a professional person to assist him or her to do work for a client are the property of the professional person, not the lay client. Speaking of documents which a firm of valuers had prepared in the course of its professional employment, MacKinnon LJ said: [Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205 at 216, followed in Chantrey Martin (a firm) v Martin [1953] 2 QB 286 at 292–3; Wentworth v De Montfort (1988) 15 NSWLR 348 at 352]

If an agent brings into existence certain documents while in the employment of his principal, they are the principal’s documents and the principal can claim that the agent should hand them over, but the present case is emphatically not one of principal and agent. It is a case of the relations between a client and a professional man to whom the client resorts for advice. I think it would be entirely wrong to extend to such a relation what may be the legal result of the quite different relation of principal and agent … [The documents in question] are documents which he has prepared for his own assistance in carrying out his expert work, not documents brought into existence by an agent on behalf of his principal, and, therefore, they cannot be said to be the property of the principal.

The doctor-patient relationship, like that of valuer and client, is not one of agent and principal. Dr Williams’ notes were prepared to assist him to fulfil his professional duties. The property in the medical records relating to Ms Breen which he prepared belongs to him; Ms Breen has no proprietary right in respect of those records. The right of ownership of Dr Williams is, statute or contract apart, good against the world and entitles Dr Williams to prevent any person from having access to those records.

Although [her counsel] conceded that Ms Breen did not own the records, he contended that she had a proprietary right or interest in the documents that entitled her to access to them. The premise of this argument was that the records were not owned by anybody. However, the idea that an item of personal property that has not been abandoned has no owner is ill-founded. Ownership may be divisible in the sense that one or more of the collection of rights constituting ownership may be detached and vested in a number of persons. Ownership may also be divorced from possession in numerous circumstances. But the notion that personal property that has not been abandoned may have no owner is one that is foreign to the common law. Statute or contract apart, medical records, prepared by a doctor, are the property of the doctor. That property right entitles the doctor to refuse other persons access to the records. [Ms Breen’s counsel’s] argument based on Ms Breen having a proprietary right or interest in the records must fail.

In Doyles Construction Lawyers v Harsands Pty Ltd, unreported, Supreme Court of NSW, 18 February 1997, McClelland CJ in Eq, the Court found, as a matter of ratio decidendi of the decision, that the parties may alter the law governing who owns which documents in the solicitors’ file by the retainer agreement. That was in one class of documents. In another class, unaffected by any such contractual alteration of the legal status quo, the Court said:

‘The ownership of these documents as between Harsands and Doyles falls to be determined by application of the principles discussed in Wentworth v de Montfort 15 NSWLR 348. As appears from that case (and see also Breen v Williams 186 CLR 71), principles developed in cases where a professional person is acting otherwise than as agent for the client (eg giving advice or preparing documents for the client’s use alone) have no necessary application to cases where the professional is acting as the client’s agent (eg a solicitor acting for a client in communications, litigation or transactions with third parties). To the extent that Doyles were acting as Harsands’ agents, the ordinary principles of agency apply, including the fiduciary obligations which arise from that relationship which in some respects survive its termination.

The documents in the possession of Doyles may be conveniently divided into two broad categories, namely (1) documents prepared by Doyles, and (2) documents received by Doyles from others.

So far as documents prepared by Doyles in relation to the O’Donnell Griffin matter are concerned I consider that Harsands is the owner of such of them as fall within one (or both) of the following categories, namely (a) documents prepared solely or primarily for the benefit of Harsands, and (b) documents for the preparation of which Harsands was, or was to be charged by Doyles. Any document prepared by Doyles not falling within either of these categories is in my view the property of Doyles.

So far as documents received by Doyles from others in relation to the O’Donnell Griffin matter are concerned, I consider that Harsands is the owner of such of them as were received by Doyles in their capacity as agents for Harsands, and that Doyles is the owner of any that were not so received.

Zeus Chemical Products Pty Ltd v Jaybee Design & Marketing Pty Ltd (1998) 41 IPR 491 was not a case about solicitors, but Young J observed:

‘The nearest authority on point was found by Mr Taylor, International Scientific Communications Inc v Pattison & Ors [1979] FSR 429. In that case the plaintiff appointed the defendant to solicit advertising for its magazine. The defendant was not soliciting advertising as a full-time job and pursued other trades at the same time as doing what was required for the plaintiff. He recorded the dealings with the plaintiff’s customers and other material on what he called a promotion list.

One of the questions before Goulding J in the English Chancery Division was whether the plaintiff was entitled to access to the list after the termination of the relationship. His Lordship says at 434 that it was evident that the plaintiff was entitled to have a copy of the list during the subsistence of the agency or forthwith upon termination. With great respect to his Lordship there is nothing in his judgment to show why he took that view, and the only conclusion must be that it was an implied term of the particular contract before him. However, his Lordship did in actual fact decline to imply wider terms or impute equitable obligation, so that he held that both parties were free to use the list for any legitimate purpose after the termination of the agency.

The point does arise on occasions with respect to doctors and solicitors. With respect to doctors the matter was dealt with by the Court of Appeal and by the High Court of Australia in Breen v Williams (1994) 35 NSWLR 522 (Court of Appeal) and (1996) 186 CLR 71 (High Court of Australia). I think all the judges, even Kirby P who dissented in the Court of Appeal from the general view that the plaintiff was not entitled to the records, took the view that (p538):

“Normally the right of ownership of the paper would afford the owner the right to provide or refuse access to a third party, either freely or at a fee.”

I think with great respect that states the general law.

With solicitors one has always got to classify the sort of document which the solicitor has. Where the solicitor has prepared a document in the course of his or her work for a client which he was under no duty to prepare, and which was not in fact prepared for the benefit of the client but for the solicitor’s benefit, then not only is the client not bound to pay but the client does not have access to that material, unless the access is obtained under some statutory provision dealing with solicitors and clients or under a discovery process; see Cordery’s Law Relating to Solicitors 7th edition (Butterworths 1981) p100.

Dean on The Law of Trade Secrets (Law Book Company 1990) p224 to p225 when dealing with the present sort of problem says that where there is an independent contractor who records information, even if he or she does so while working on a specified product for somebody else, the contractor may still have property in the information. There may be superadded a duty in confidence not to use the information against the client, but, generally speaking, it becomes part of the property of the independent contractor. So in Cope Allman (Marrickville) Ltd v Farrow (1984) 3 IPR 567 a contractor who was building poker machines, who worked out software for computers to enable them to be programmed, did not have to hand the software over to the clients whose work was being done when this process was actually discovered by the defendant.

However, it is a different matter if the contract for services expressly or impliedly contains the obligation on the contractor to provide all the information which he or she has for the benefit of the “client”.’

In White v the State of South Australia [2007] SASC 75, the Supreme Court of South Australia said:

[93] All documents held by a solicitor are not necessarily the property of the client or a documents which the client possesses or are within the client’s power or custody: Wentworth v De Montfort (1988) 15 NSWLR 348. Thus, relevant documents which are the property of the solicitor are not discoverable as the documents for the client: O’Shea v Wood [1891] P 286. They might have to be produced in answer to a subpoena duces tecum but they are not discoverable. However, where the solicitor receives documents which are the property of the third person for the purpose of assisting the solicitor in the conduct of particular proceedings, the documents would as a general rule be given to the solicitor as agent for his client so that, on ordinary principles of agency, the documents would be discoverable as documents in the possession, custody or power of the client. There is no reason why that proposition should be any different if the documents were provided to the solicitor to assist the client in the conduct of the proceedings but on terms that they should not be disclosed to the client. As the documents have been made available to assist the client in the conduct of the litigation, they are effectively in the custody of the client. Notwithstanding that the client is not at liberty to examine them, the solicitor is holding the documents on behalf of the client: cf. Norton & Co v Lamport Holt & Co (1886) 2 TLR 630. Furthermore, if this is not the position, it opens the rules to discovery to abuse.

In McGrath v Macrossan and Amiet [2007] QSC 305 , the Supreme Court of Queensland said:

‘It was submitted that the class of documents which are its property are those brought into existence solely or predominantly for the respondent’s own benefit or information in the course of performing its retainer and for which the clients were not charged (Wentworth v De Montfort (1988) 15 NSWLR 348; Doyles Construction Lawyers v Harsands Pty Ltd (SCNSW (Equity Division) No 3007 of 1996, unreported, 18 February 1997, McLelland CJ in Eq)).

[8] The respondents’ solicitors replied as follows:

‘The file notes that were made by solicitors to assist in the performance of their duties include notes made (by the solicitors) as to work done or to be done.

The writer has prepared an affidavit which has been sent to Counsel for settling which includes the following paragraph:

No fees have been charged to Mr and Mrs McGrath with respect to the production of these notes.’.

[9] The reference to documents made by the solicitors to assist in the performance of their duties resembles words used by Gaudron and McHugh JJ in Breen v Williams (1996) 186 CLR 71 at 101 concerning notes made by a medical practitioner (cf Brennan CJ at 80). Mr Mullins SC pointed out the fiduciary nature of the relationship between solicitor and client, which was absent from the relationship between a medical practitioner and patient. He referred to Hope JA’s reference in Wentworth v De Montfort at 358–359 to questions of degree probably being involved in situations that fell between the case where documents belong to the client and those where the record is solely for the benefit of the solicitor and not charged to the client. He relied on the observation that, probably, such cases involved consideration of what was the predominant purpose.

[10] There was also some focus on Re Thomson (1855) 20 Beav 545 ; 52 ER 714. That was a case where the solicitor involved offered to provide copies, at the client’s cost, of certain letters transcribed by him into a journal, and original letters received by him in the course of representing the applicant from the other solicitors. The original letters were held to have been received as the client’s agent. The case may not be as helpful as the applicant’s submission suggests on relevant issues in this case (see last sentence of Brennan CJ’s footnote [31] in Breen).’

In Areva Nc (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [no 2] [2008] WASC 10, Western Australia’s Chief Justice said this about the issue:

‘[10] In Wentworth v De Montfort (1988) 15 NSWLR 348, the Court of Appeal of New South Wales was required to determine whether documents in the possession of a firm of solicitors were the property of the client. Hope JA, with whom Samuels and Mahoney JJA agreed, reviewed the authorities and texts on the subject. After that review, his Honour concluded that there were a number of factors relevant to the determination of ownership, including whether or not the client was charged with the creation of the document, and whether the solicitor created the document for his client’s benefit and protection, or did so for his own benefit and protection. In the case of mixed purposes, Hope JA concluded that the client would ordinarily be entitled to the original of the document, but the solicitor would be entitled to retain a copy for his own benefit.

[11] In the present case, I have no evidence as to whether or not the Summit parties were charged for the creation of the drafts of Mr Eggers’ statement of evidence. However, as there is no evidence to the contrary, I am disposed to infer from the usual course of dealings between solicitor and client that Mr Shaw would have charged the Summit parties and been paid for the work that he did in relation to the preparation of the drafts of Mr Eggers’ statement.

[12] Some of the documents at issue in Wentworth v De Montfort included notes of conversations between the solicitors and persons other than the client. In that context, Hope JA observed at 358–359:

Again a solicitor may interview a witness and take a statement from him. I would have thought that such a statement was taken for the benefit of the client as well as by the solicitor for his own purposes and undoubtedly the client would be charged for the taking of the statement. If a new solicitor took over a client’s business, the former solicitor having been paid his fees, I would have thought that the former solicitor would be bound to hand over the statement to the new solicitor, although he could keep a copy for which he had not charged.

As I have indicated, Cordery suggests that both that ‘entries of attendance’ and ‘proofs of evidence’ are the property of the solicitor. No authority is cited for these suggestions, and I would have thought that they both fell squarely within the first of the four categories described by Cordery and that they each belonged to the client. The ‘Guide to the Professional Conduct of Solicitors‘ issued by the (English) Council of the Law Society (1974) stated (at 39) that a memorandum of a telephone conversation with a third party made by a solicitor is the property of the client, and is accordingly to be handed over on a change of solicitors.

[13] The Summit parties seek to avoid the application of the principles enunciated by Hope JA in Wentworth v De Montfort by pointing to the fact that the documents in question are a draft or drafts of a proposed witness statement. They submit that there is no evidence that the solicitor intended to provide this draft or a copy of it to the Summit parties or anyone else. They submit that the evidence sustains an inference that the solicitor was still working on the draft, and did not intend to part with it until he had completed his work.

[14] However, it seems that the conclusions to be drawn in respect of the intentions of the solicitor as to the future use to which the document would be put are not to the point of the principles enunciated by Hope JA in Wentworth v De Montfort. Those principles turn upon the question of the identification of the person for whose benefit the document was prepared. The decision in Wentworth v De Montfort stands for the proposition that a proof of evidence should be taken to be prepared by the solicitor for the benefit of the client and therefore belonged to the client. I can see no reason why any different conclusion should be reached in respect of the draft or drafts of a proof of evidence. In the present case, it is to be inferred from Mr Shaw’s affidavit that the draft or drafts record statements made by Mr Eggers during the course of his meetings with Mr Shaw in late December 2006 and early January 2007. To that extent, the documents also fall within the category of documents identified by Hope JA as having been taken for the benefit of the client as well as for the solicitor. In respect of that category, Hope JA was of the view that property in the document belonged to the client, subject to the right of the solicitor to retain a copy for his own purposes.

[15] The Summit parties also relied upon the observation of Brennan CJ in Breen v Williams (1996) 186 CLR 71 at 80:

Documents prepared by a professional person to assist the professional person to perform his or her professional duties are not the property of the lay client; they remain the property of the professional.

[16] Brennan CJ cited two authorities for that proposition. The first, Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205, concerned the question of property in books and records prepared by valuers who had been engaged to undertake the valuation of property on behalf of a local authority. MacKinnon LJ observed at 216:

If an agent brings into existence certain documents while in the employment of his principal, they are the principal’s documents and the principal can claim that the agent should hand them over, but the present case is emphatically not one of principal and agent. It is a case of the relations between a client and a professional man to whom the client resorts for advice … These pieces of paper, as it seems to me, cannot be shown to be in any sense the property of the plaintiffs, any more, as I suggested to Mr Macaskie during the argument, that his solicitor client or his lay client could assert that his notes of the argument he addressed to us could be claimed to be delivered up by him when the case is over either to the solicitor or to the lay client. They are documents which he has prepared for his own assistance in carrying out his expert work, not documents brought into existence by an agent on behalf of his principal, and, therefore they cannot be said to be the property of the principal.

[17] That passage is entirely consistent with the principles enunciated by Hope JA in Wentworth v De Montfort, which focused critically upon the identification of the person for whose benefit the documents were produced.

[18] The second case cited by Brennan CJ, Chantrey Martin (A Firm) v Martin [1953] 2 All ER 691; [1953] 3 WLR 459 ; [1953] 2 QB 286 concerned working papers brought into existence by chartered accountants in the preparation of an audit of a client’s books. The Court of Appeal held that those working papers were the property of the chartered accountants and not the client. After referring to the decision in Ex Parte Horsfall (1827) 108 ER 20, which concerned the drafts of deeds, Jenkins LJ (giving the judgment of the court) observed at 293:

Even in the case of a solicitor there must, we should have thought, be instances of memoranda, notes, etc, made by him for his own information in the course of his business which remains his property, although brought into existence in connexion with work done for clients.

[19] Again, this passage seems to me to be entirely consistent with the principles enunciated by Hope JA in Wentworth v De Montfort.

[20] Accordingly, when regard is had to the authorities cited by Brennan CJ in support of the observations which he made in Breen v Williams, it is clear that he was not advancing any proposition inconsistent with that enunciated in Wentworth v De Montfort. Rather, properly construed, he was reinforcing that proposition, by emphasising the importance of the identification of the person for whose benefit the document was produced.

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