DR Sheridan LLP v Higgins & Anor

This is an application by a firm of solicitors, D R Sheridan LLP, seeking declaratory and interpleader relief in relation to (a) their unpaid costs, and (b) their client file, for the period from December 2008 until February 2010 during which (as D R Sheridan & Co) they acted in relation to the estate of the late Constance Mary Higgins (“Mrs Higgins”) who died on 23 November 2008.

D R Sheridan LLP is the successor to the business and undertaking of D R Sheridan & Co, which were transferred to it on 1 October 2010. For present purposes, nothing turns on the differences between the limited partnership and its predecessor, and I will refer to them both as “D R Sheridan”. At all material times, the sole principal of D R Sheridan & Co was Mr Dennis Sheridan, and he is now the principal member of the limited partnership. D R Sheridan’s office is at 106 High Street, Bushey, Hertfordshire.

Mrs Higgins’ husband had predeceased her in 2005, but she was survived by her son Edward Barnaby Higgins (“Mr Higgins”) and her daughter Joanna Mary Woods (“Mrs Woods”), each of whom had two children. By her will dated 8 May 2008 (“the Will”), which was drafted for her by D R Sheridan, Mrs Higgins appointed her son and daughter to be her executors and trustees, and left her residuary estate as to one half share to Mr Higgins absolutely, and as to the other half share equally between such of Mrs Woods’ two sons, Philip and Leo, as should attain the age of 18. Mrs Woods was not herself a beneficiary under the Will, perhaps because she was engaged in divorce proceedings from her husband. Of her two children, Leo is a minor, but Philip is over 18. Mr Higgins lives in Australia. Mrs Woods lives in England, at Pinner in Middlesex. The total size of the estate, including the disputed £200,000 referred to below, is of the order of £500,000.

Soon after their mother’s death, Mr Higgins and Mrs Woods jointly instructed D R Sheridan to act for them as executors in relation to Mrs Higgins’ estate, and each of them signed by way of acceptance a separate letter of engagement from D R Sheridan dated 11 December 2008. Paragraph 17 of this letter stated that the retainer could be terminated by either party at any time, but that D R Sheridan would not do so except for good reasons (such as where a conflict of interest arose, or where there was a breakdown in trust and confidence between them), and upon reasonable notice. In that event, the client would be liable for all fees and disbursements outstanding at the date of termination “plus any fees and disbursements for work necessary in transferring the matter to another advisor of your choice”. D R Sheridan also expressly reserved the right to exercise a lien over the client’s files, if bills remained unpaid, whereby the files would not be released either to the client or to any third party.

The initial instructions to D R Sheridan were given at a meeting on 10 December 2008, attended by both Mr Higgins and Mrs Woods. Mr Higgins then returned to Australia, but it was agreed that D R Sheridan would keep them both fully informed of all that was being done in respect of the estate.

Preparation of the papers intended to lead to a grant of probate was undertaken by D R Sheridan’s probate associate, June Webster. In about April 2009 it became apparent to Ms Webster that a substantial sum of money (initially thought to be about £100,000, but subsequently discovered to be of the order of £200,000) had been removed from the estate, either before or after Mrs Higgins’ death, and had been transferred by Mrs Woods into Building Society accounts in the names of Philip and Leo. Mrs Woods gave a number of differing accounts to Ms Webster and Mr Sheridan of the circumstances surrounding these transfers, and it soon became clear that there was a potential conflict of interest between herself and the estate in relation to them. D R Sheridan therefore very properly advised Mrs Woods to seek independent legal advice. On 9 June 2009 Mrs Woods informed Mr Sheridan that she had instructed Barnes & Partners, solicitors, to act for her in relation to the dispute, and on 10 June Barnes & Partners wrote to D R Sheridan confirming their instructions to act on behalf of Mrs Woods in relation to the estate. Correspondence then ensued, and on 23 June Mr Higgins arrived from Australia. According to a letter dated 24 June 2009 from D R Sheridan to Barnes & Partners, Mr Higgins thought he had obtained his sister’s agreement to return the £200,000 to D R Sheridan as solicitors for the estate, and repayment was accordingly requested by noon on 26 June. In default of such payment, or an undertaking to equivalent effect, D R Sheridan said their instructions were to issue proceedings to prevent dissipation of the money.

This letter prompted telephone conversations between the senior litigation partner of Barnes & Partners, Mr John Esplen, and Mr Sheridan, in the course of which Mr Esplen expressed the view that D R Sheridan could no longer properly act either on behalf of the executors collectively, or separately on behalf of Mr Higgins. Mr Sheridan disagreed, and in letters to Mrs Woods and Barnes & Partners he said that in his view Mrs Woods remained D R Sheridan’s client in her capacity as one of the two executors, and that there was no conflict of interest for D R Sheridan in continuing to act as solicitors for the estate. He said that D R Sheridan’s sole purpose and responsibility was to establish the extent of the estate and protect it. He even invited Mrs Woods, in her capacity as an executor, to attend a conference which had been arranged with counsel with a view to issuing proceedings to protect the £200,000. Counsel instructed was Ms Emily Campbell of Wilberforce Chambers in Lincoln’s Inn, London.

Mr Sheridan also took the precaution of speaking to the professional ethics department of the Law Society, and was apparently assured by them that there was no conflict of interest so far as D R Sheridan was concerned. In a further letter to Barnes & Partners dated 30 June 2009, Mr Sheridan said that if Mrs Woods failed to provide satisfactory answers to the questions put to her, D R Sheridan would seek instructions that she be removed from acting as an executor.

On 30 June Barnes & Partners replied, reiterating their view that it was not professionally correct for D R Sheridan to continue to act in any capacity because of the possible conflict of interest between the two executors. They said:

“Clearly, it is not … possible for [D R Sheridan] to continue to act in any capacity. You are under a professional duty not to put confidentiality at risk by acting. For the avoidance of doubt, we confirm that [Mrs Woods] withdraws any instructions from [D R Sheridan] and does not provide her consent for you to continue to act in any capacity in this matter.”

In the light of this letter, with its unequivocal withdrawal of any instructions from Mrs Woods in any capacity, it must have been clear to D R Sheridan that from this point onwards, if not before, their only client was Mr Higgins. Furthermore, this seems to have been recognised by Mr Sheridan, because in a lengthy letter of 2 July 2009 to Barnes & Partners he expressly stated that D R Sheridan continued to act for Mr Higgins in his capacity as an executor. He went on to argue that this involved no conflict between Mr Higgins and Mrs Woods in their capacities as executors, and that the only conflict was caused by Mrs Woods’ receipt in her personal capacity of the disputed £200,000. He asserted that there was no rule of conduct which would prohibit D R Sheridan from acting against Mrs Woods on behalf of the estate, even though she was a former client. On the instructions of Mr Higgins in his capacity as executor, Mr Sheridan then set out a series of questions concerning the dispute and demanded a full and frank answer, signed with a statement of truth by Mrs Woods, by 8 July 2009. On 2 July Barnes & Partners replied, giving details of the Building Society accounts in which the disputed money was held. Five of the accounts, containing in all approximately £150,000, were in the name of Philip, while the remaining sum of approximately £50,000 was held in an account in the name of Leo. Barnes & Partners assured Mr Sheridan that there was no intention of making withdrawals from any of the accounts, and said that Mrs Woods would be happy to consider any sensible proposal put forward by Mr Higgins to protect the position.

Further correspondence followed, without agreement being reached, and on or about 4 August 2009 proceedings were issued in the Chancery Division of the High Court by Mr Higgins against Mrs Woods and Philip, seeking a freezing injunction and an order for provision of the information requested in D R Sheridan’s letter of 2 July. Belatedly, the parties then came to a compromise which was embodied in the terms scheduled to an order made by Floyd J in the vacation court on 20 August 2009. The terms provided for Mr Sheridan to be added as a co-signatory to the six accounts, and to remain as such until the court had determined the beneficial ownership of the accounts or the parties had reached an agreement. A further term was that Mrs Woods would serve an affidavit by 4 September 2009 replying to the questions in D R Sheridan’s letter of 2 July.

With the making of this order, the Chancery proceedings seem to have gone to sleep. No steps have yet been taken to resolve the issue of beneficial ownership of the £200,000, and the money remains in the six accounts with Mr Sheridan as a co-signatory.

At about the same time, Mr Sheridan put a proposal to Barnes & Partners that an application should be made to the Probate Registry for a grant of Letters of Administration ad colligenda bona to be made to Mr Higgins alone, and that he should thereafter act as sole executor. Mrs Woods was invited to consent to this course, and on 26 November 2009 Barnes & Partners confirmed that she would be willing to do so. Unfortunately, however, for reasons which remain obscure, Mr Higgins was unwilling to give instructions to Mr Sheridan for this sensible plan to be adopted. Mr Higgins increasingly relied for advice on an Australian lawyer who was a friend of his, Mr David Roe, and for a number of reasons he became unhappy about the way in which Mr Sheridan was acting on his behalf.

On 18 December 2009 Mr Sheridan wrote to Mr Higgins, saying that his position as solicitor acting on behalf of the estate had become “almost untenable”. He again set out the advantages of obtaining a grant ad colligenda bona, and informed Mr Higgins of his sister’s agreement to the proposal. He questioned whether the relationship between D R Sheridan and Mr Higgins had broken down, saying “I have sought your instructions, but I receive only questions from David Roe, who I do not accept is an appropriate agent [or] intervener on your behalf”. He said that the alternatives open to Mr Higgins were either to continue to instruct D R Sheridan (in person, or through an agent who was an expert in probate law), or to withdraw his instructions from D R Sheridan and seek other representation in England.

Mr Sheridan received no substantive response to this letter, and on 3 February 2010 he sent an email to Mr Higgins terminating D R Sheridan’s retainer. Mr Sheridan said that he, counsel and the firm had done everything they could to protect the estate and Mr Higgins’ position, and concluded:

“You have placed my firm and me in a most invidious situation and on this basis, as there is clearly a loss of trust between yourself and this firm and as we have been without instructions for some time, and as we are without a retainer and as we have notified you on several occasions as to our position, we have no alternative, as mentioned above, but to terminate the retainer.”

Two days later, on 5 February 2010, Mr Sheridan was informed by an English firm of solicitors, Boyes Turner LLP of Reading, that Mr Higgins had instructed them.

At this point, one would expect arrangements to have been made with minimum fuss and delay for D R Sheridan’s client file to be handed over to Mr Higgins’ new solicitors, subject to suitable provision being made to preserve D R Sheridan’s lien for their unpaid costs. It should have been obvious, in my judgment, that (subject to any lien) Mr Higgins had the sole right to direct where the file should be transferred in relation to documents which had come into existence after the termination of Mrs Woods’ retainer, i.e. after 9 June 2009 (or, at the very latest, after receipt of Barnes & Partners’ letter of 30 June 2009 saying that D R Sheridan had no continuing authority to act for Mrs Woods in any capacity). From that time onwards, Mr Higgins was D R Sheridan’s sole client in relation to the estate, and far from Mrs Woods being a client of the firm, she was the principal defendant in proceedings instituted by D R Sheridan, on the instructions of Mr Higgins alone, to protect the estate. For the purpose of those proceedings, Mr Higgins and his Australian lawyer communicated sensitive and confidential material to D R Sheridan which Mr Higgins could never for a moment have thought his sister would have any right to see merely by virtue of the fact that she was his co-executor. In respect of the period before 9 June 2009, the position was of course different, because D R Sheridan had then acted for both Mr Higgins and Mrs Woods jointly, so they were prima facie jointly entitled to the documents on D R Sheridan’s file for that period, and neither of them could assert claims of confidentiality or privilege in respect of such documents against the other.

It seems that Mr Sheridan himself initially saw things in this way, because on 7 January 2010 he had sent an email to Mr Higgins asking for instructions, and saying that if Mr Higgins no longer wished D R Sheridan to act on behalf of the estate “I will finalise this firm’s fees for settlement and, subject to payment, will forward the file to whomever you wish to instruct”. Most unfortunately, however, Mr Sheridan seems to have rapidly abandoned that simple (and, in my judgment, correct) view of the matter, and instead he became bogged down in a prolonged, inconclusive and at times acrimonious correspondence with Boyes Turner where he sought to maintain the unsustainable position that he should not release the file to Boyes Turner unless it was also copied or made available in its entirety to Mrs Woods’ solicitors, Barnes & Partners.

It is unnecessary to describe this correspondence in detail, and I will confine myself to a summary of its main stages.

At this point, Mr Sheridan decided to try a new tack. On 4 March 2011 he wrote to Barnes & Partners summarising Boyes Turner’s stance and requesting Mrs Woods’ written confirmation that she would be content for the relevant documents on the file (i.e. those which were generated after she had ceased to instruct D R Sheridan) to be delivered up to Boyes Turner, on the basis that D R Sheridan would not disclose any of such documents to Mrs Woods without either her brother’s consent or an order of the court. Mr Sheridan then said:

“If on the other hand your client wishes to assert a claim to the relevant documents (or any of them), then we will have no alternative but to make an application to the Court to resolve the matter, and any such application will inevitably also ask that our costs be provided for.”

On the same day, Mr Sheridan wrote to Boyes Turner informing them of his letter to Barnes & Partners.

On 11 March Boyes Turner replied, saying they did not consider there was any need to obtain Mrs Woods’ consent, and that if D R Sheridan thought it necessary to issue proceedings Mr Higgins would seek an order that D R Sheridan should bear the costs of his representation in those proceedings.

Meanwhile, no immediate response from Barnes & Partners was forthcoming. Eventually, after various telephone calls and chasing letters, Barnes & Partners stated Mrs Woods’ position on 26 May 2011:

“We have now taken our client’s instructions and we confirm that it is our client’s position (and indeed our own) that all paperwork in your possession should be released to both parties. Obviously, one set would need to be an exact copy of the original files in your possession. We believe that this position should be put by you to Boyes Turner together with a warning that unless they consent to the same, a costs order will be sought against them in connection with any application to the court, given that there can be no realistic argument on our client not having equal access to the paperwork.”

Following receipt of this letter D R Sheridan did not attempt to enter into any further correspondence with Boyes Turner, and instructed counsel (Mr Mark Studer) to settle the proceedings which are now before me. In the Part 8 claim form, which was issued on 2 June 2011, D R Sheridan seeks the following relief:

The evidence in support of the claim consists of a witness statement by Mr Sheridan dated 31 May 2011, setting out the history and correspondence which I have already described.

In due course an order was made permitting service of the claim on Mr Higgins in Australia, and an order was made extending time for the filing of his evidence. Mr Higgins’ witness statement is dated 12 September 2011. In relation to the proceedings against his sister, he says this:

“11.

I found the matters that gave rise to the instigation of the court proceedings against my sister both bewildering and distressing, particularly when I lived the other side of the world in Australia and was unable to meet with her to have a frank discussion about what had happened. In the course of subsequent communications between me and my Australian lawyer, David Roe on the one hand, and Mr Sheridan’s firm on the other hand there were a [series] of extremely sensitive and confidential matters raised between us that I would never have dreamt of taking place if Mr Sheridan had advised me that any such communications would be disclosable to my sister (as he now professes to be the case). If he had advised me that this was the case … I would have informed him immediately that in those circumstances I had no option but to engage another firm of solicitors. As it was Mr Sheridan gave me no such advice.”

Mr Higgins also says that, if the file is transferred to Boyes Turner, he accepts that it will be his duty as an executor to use the documents in question for the benefit of the beneficiaries of the estate. In relation to Mrs Woods’ position as stated by Barnes & Partners on 26 May 2011, he comments in paragraph 22:

“I am not surprised that my sister’s lawyers should seek to take advantage of Mr Sheridan’s discomfort but I find it somewhat ironic that they have done so in view of their very strong earlier representations to Mr Sheridan’s firm that they were conflicted from acting further at all in connection with the administration of the estate …”

If the court rules that the post-June 2009 documents on the file should be treated as confidential to him alone, Mr Higgins expresses his continuing willingness to pay the sum of £22,301.74 in respect of D R Sheridan’s invoices, without challenging the reasonableness of those fees, and says he will then take steps to bring about the administration of the estate as quickly as possible. However, he reserves the right to object to payment of any of D R Sheridan’s fees if the court holds that any of the relevant documents should be disclosed to his sister.

Finally, Mr Higgins says he has done what he can to try to avoid a costly battle in these proceedings by instructing Boyes Turner to put formal proposals to Mrs Woods, whereby an independent solicitor would be appointed to administer the estate. Such proposals were put to Barnes & Partners on 26 July 2011, but no substantive response had been received by the date of Mr Higgins’ statement. In those circumstances, Mr Higgins says he was forced to incur the costs of representation in the present action, but he does not see why he or the estate should have to bear any of its costs. Whatever the outcome, he says that he will ask for his costs to be paid by D R Sheridan on an indemnity basis.

For her part, Mrs Woods has not filed an acknowledgment of service or any evidence in respect of the claim. Her only concern is to protect her position on costs, and to that end, having failed to obtain agreement that no costs order would be sought against her, she has instructed counsel (Ms Karen Shuman) to attend the hearing for that limited purpose.

Lastly, I should mention that the case was originally due to be heard before Master Bragge in November 2011, and the parties filed skeleton arguments in preparation for the hearing, but the Master then decided that it should be adjourned to a judge. Thus it is that the matter came before me on 26 January 2012, with Mr Studer appearing for D R Sheridan, Miss Nicole Sandells (instructed by Boyes Turner) appearing for Mr Higgins, and Ms Shuman (instructed by Barnes & Partners) appearing for Mrs Woods.

Despite the prolonged and unhappy history which I have recounted, there was in the end no real disagreement about the substantive disposal of the claim.

As to D R Sheridan’s fees, nobody disputes that D R Sheridan is in principle entitled to assert a lien over the File until its reasonable costs, charges and expenses for acting on behalf of Mr Higgins and Mrs Woods, and then for Mr Higgins alone, have been paid. Nor is there any dispute that the figure of £22,301.74, which was frequently mentioned in the correspondence, would be a reasonable amount. Despite the efforts made by Boyes Turner in correspondence to make agreement on this amount conditional upon the resolution in Mr Higgins’ favour of the dispute about the File, and despite the threat to this effect made by Mr Higgins himself in his witness statement, Miss Sandells wisely did not attempt to advance any such argument in either her written or her oral submissions. Indeed, she submitted that the declaratory relief sought in the claim form was unnecessary.

With regard to the File, there is now no opposition by Mrs Woods to the argument on behalf of Mr Higgins that the contents of the File since 9 June 2009 should be held by D R Sheridan to the order of Mr Higgins alone. As I have already indicated, I consider that this argument is plainly correct. Once Mrs Woods had withdrawn her instructions from D R Sheridan, the sole client of the firm was Mr Higgins and he was the only source of their instructions. Those instructions included the commencement and prosecution of potentially hostile litigation against Mrs Woods, for which purpose Mr Higgins says he provided Mr Sheridan with material which I have not seen, but which I have no reason to doubt was both highly confidential and privileged in the hands of Mr Higgins.

The fact that Mr Higgins was so acting in his capacity as an executor, and in what he conceived to be the best interests of the estate, does not in my judgment impact on the simple point that he was D R Sheridan’s only client, and that the File after 9 June 2009 was therefore held to his order. Of course, the File may well also contain documents that Mrs Woods would be entitled to see, should she wish to do so, in her capacity as a named co-executor under the Will, but again that appears to me to be irrelevant to the position as between D R Sheridan and Mr Higgins. It simply means that, if Mrs Woods were to make an appropriately worded request to Mr Higgins after the File had been transferred to Boyes Turner, the request would prima facie be a proper one, and Mr Higgins would therefore be well advised to instruct Boyes Turner to comply with it. What it does not mean – and this is the crucial point which D R Sheridan seems to me to have misunderstood throughout – is that Mrs Woods had any continuing proprietary or beneficial right to or interest in the documents on the File after 9 June 2009, such that D R Sheridan came under an obligation to hold them to her order as well as to the order of Mr Higgins.

I would add that, even if this conclusion is arguably too widely expressed, and Mrs Woods did have some kind of continuing interest in estate-related documents on the File of a non-controversial nature, the very most that D R Sheridan could reasonably have argued, in my view, is that copies of such documents alone should also be sent to Barnes & Partners. This would have been a reasonable compromise position to adopt, and it was essentially what Boyes Turner suggested when they put forward their revised proposals in October 2010. It is a great pity, in my judgment, that D R Sheridan did not see fit to accede to this sensible proposal, and that they took their stand on the clearly untenable proposition that the whole of the File, including documents relating to the proceedings against Mrs Woods, should be made available to her solicitors as well as to Boyes Turner. From their letter of 8 November 2010 to Boyes Turner onwards, if not earlier, I regret that I consider the position adopted by D R Sheridan to have been wholly unreasonable.

As matters now stand, the question whether a possible refinement of the type which I have just mentioned might be appropriate is academic. Mrs Woods made it clear as long ago as November 2009 that she was content for Mr Higgins to be appointed as sole executor, and she has made no attempt in the present proceedings either to uphold the extreme position advanced on her behalf in Barnes & Partners’ letter of 26 May 2011 or to argue for a more limited right to have particular categories of documents in the File since 9 June 2009 released to her. As I have already explained, I do not consider that a limited argument of that nature would be strictly correct, although it would have provided a sensible basis for a compromise. In the circumstances, I propose to answer the question in paragraph 3 of the claim form in terms of subparagraph (c), namely that the relevant part of the File is now held to the order exclusively of Mr Higgins. I do not think that any further direction is necessary, although Mr Higgins and Boyes Turner should bear in mind the prima facie entitlement of Mrs Woods as an executor named in the Will to have access to documents of a non-controversial nature which relate to the estate, even if such documents came into existence after 9 June 2009.

Although Mrs Woods has played no part in the action, I am afraid that I cannot absolve her too of having acted unreasonably. I express no view about the merits of the dispute concerning the £200,000, which is not before me and in relation to which I have seen only a fraction of the relevant evidence. But the issue of the present proceedings on 2 June 2011 was precipitated by the claim to “equal access to the paperwork”, and for the release to her of an exact copy of the entirety of the File, in her solicitors’ letter of 26 May 2011. This letter was written on her instructions, and I feel driven to conclude that it represented an irresponsible and opportunistic attempt to take advantage of the difficulties in which Mr Sheridan found himself. It is revealing, in my judgment, that once the action had been started, Mrs Woods quickly decided to play no part in it, and no effort has subsequently been made on her behalf to defend the position stated in the letter. Instead, Ms Shuman argued that it was premature for D R Sheridan to begin interpleader proceedings, and that they should not have interpreted the letter as advancing an unequivocal claim to entitlement to documents on the File. In my view, however, this argument rings hollow. The letter was written after several chasing enquiries, it expressly stated that Mrs Woods’ instructions had been taken, and the view advanced was said to be not only that of Mrs Woods, but also that of Barnes & Partners. The contention was advanced in unqualified terms, and in my judgment Mrs Woods should not have been surprised that D R Sheridan then issued proceedings in order to resolve the apparent conflict.

The one party whose conduct cannot be severely criticised, in my view, is Mr Higgins. The analysis of the legal position put forward in correspondence by Boyes Turner on his behalf was in my view both substantially correct and clearly expressed. It is most unfortunate, to my mind, that Mr Sheridan was unpersuaded, and that he ultimately took refuge in an indefensible position. The dispute about the destination of the File was one that cried out for a rapid and inexpensive solution. It should have required no more than the exchange of a few letters, followed if necessary by the threat of a quick application to the Master if Mrs Woods persisted in advancing a claim to any part of the File after 9 June 2009. Instead, the matter was allowed to drag on inconclusively for two years, and the administration of the estate has been paralysed. Even today, well over three years from Mrs Higgins’ death, no grant of representation to her estate has been taken out.

A further disturbing feature of the case is that D R Sheridan’s statement of costs for the proceedings amounts to no less than £35,882.09 plus VAT, including fees to counsel (Mr Studer) of approximately £16,100 for advice on some 17 occasions from 18 October 2010 onwards, as well as fees for settling the claim form, his skeleton argument and brief fee. As I said in the course of the hearing, I find it shocking that fees of this order of magnitude should have been incurred by a solicitor in dealing with an essentially straightforward dispute that should have been capable of rapid resolution.