Case: A v B [1984] 1 All ER 265
Outcome: distinguished
A v B [1984] 1 All ER 265 (" A v B "), Leggatt J applied the exception to the general rule and refused to order production of the client's papers. In refusing the order, Leggatt J relied on the following matters: (1) the solicitors had a default judgment for their legal fees against the client; (2) the solicitors had performed a "massive" amount of work against a payment of no more than $10,000; (3) the possibility of considerable hardship to the client if the order for production was not made had passed; (4) the solicitors had behaved impeccably and their conduct could not be criticised; and (5) by contrast, the client had not advanced any reason for not paying the solicitors' fees, nor had it produced any evidence to show that it could not do so. In Ismail v Richards Butler (a firm) [1996] QB 711 (" Ismail "), Moore-Bick J varied an order made by a master that there be production subject to the client paying &#163;150,000 to the solicitors and &#163;310,000 into Court by requiring instead that the client provide security for &#163;450,000. The case for an exception to the general rule was not as strong as the case of A v B because there was not on the material before the Court sufficient to enable the judge to decide whether at the conclusion the solicitor would be held entitled to recover the full amount of his claim, or indeed any particular amount. Nevertheless, security was appropriate and Moore-Bick J said (at 731): "However, when I consider the other aspects of this case I do think that some departure from the normal practice is called for in the interests of justice. I can see no basis for criticising Richards Butler's conduct in this matter, and such indications as there are suggest that in some respects the plaintiffs' attitude may owe more to negotiating tactics than to a real sense of grievance. I accept that the plaintiffs require the immediate delivery of the papers in the three matters mentioned in their summons which remain fully live, but if Richards Butler are required to hand over the papers on the usual terms their lien is likely to prove of little value when the papers are returned to them. It has not been suggested, on the other hand, that the plaintiffs are likely to suffer any real hardship if they are required to provide security of another kind other than the general effect on their cashflow of having to fund a payment into court. That is a difficulty which can probably be largely overcome by providing security in some other recognised form. Taking all these matters into account I am satisfied that the interests of justice in this case require that the plaintiffs provide some security for Richards Butler's claim." It seems to me that the effect of the authorities is that the general rule is that, where the solicitor terminates the retainer, an order for production will be made. There may be exceptional circumstances which lead to a modification of the general rule. The modification of the general rule will, generally speaking, involve the imposition of terms, such as part payment or payment into court or the provision of security. In an extreme case like A v B , where the factors identified in [44] are present, that may lead to a refusal of an order for production. However, generally speaking, the presence of exceptional circumstances will lead to the imposition of terms. That to my mind is the effect of the decision in Gamlen and, I think the decision of Moore-Bick J in Ismail is consistent with that conclusion. In Ismail , Moore-Bick J said (at 731) that he could see no basis for criticising the conduct of the solicitors and that there was evidence to suggest that the client's attitude owed more to negotiating tactics than a real sense of grievance. It seems to me that this case is clearly distinguishable from the case before Leggatt J in A v B . It is also distinguishable from Ismail because I cannot say that the cross-claimants do not have a real sense of grievance or indeed a substantial cause of action against the cross-respondent. It seems to me that this case is analogous to the decision in Gamlen . It presents the same problem identified by Goff LJ (see [41] above) in that there may prove to be nothing in the cross-claimants' allegations against the cross-respondent, but it is simply not possible to say that at this stage. They are substantial, they arise directly out of the applicants' claim and they are the subject of a cross-claim.