Overview

The Court of Appeal has dismissed an appeal by insurer Quinn in its case against the Law Society, upholding the finding that the solicitors’ insurers are not entitled to obtain confidential and privileged documents on files where no claim has been made against their insured by the client.

Background:

In 2007 the Law Society intervened in the practice of South Bank, a two partner firm, and took possession of a large number of documents and files. A large number of lenders’ claims were made and notified to Quinn, the firm’s primary insurer. Quinn declined to indemnify the conveyancing partner on the basis of dishonesty, but also needed to consider whether it could also refuse to indemnify the remaining partner on the basis that he had condoned the fraud. Quinn sought access to client files held by the Law Society, which declined to provide them. Quinn issued proceedings seeking an order allowing it to inspect and copy all documents within the Law Society’s power and control.

There was no issue in relation to files where there was already a claim against South Bank: the implied waiver of client confidentiality and privilege allowed the Law Society to disclose them. The key issue was whether Quinn was entitled to the remaining client documents on files which had not led to claims. Privilege had not been waived on those because there was no claim. The Law Society argued that it was entitled to withhold production and indeed was bound to do so to protect client privilege and confidentiality. Neither the Law Society nor the clients of South Bank were parties to the policy so Quinn had no contractual claim to the documents, and it did not have client consent for it to have them. Quinn argued that the Society’s obligation to provide the documents sought was nevertheless to be implied into the regulatory scheme applying to solicitors. The judge disagreed and Quinn appealed.

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