Consideration
43 The relevant rule is UCPR 33.11(1) which provides:
"33.11(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
…"
44 Perpetual's submission that there is a significant difference between a beneficiary's right to access documents from his or her trustee and the obligation of a person to respond to a subpoena is undoubtedly correct. As Perpetual pointed out, the most obvious distinctions are that a subpoena is an order of the Court requiring production of documents by compulsion of law and different considerations of relevance apply.
45 That, however, does not provide a complete answer to the plaintiff's first argument. In exercising my discretion under UCPR 33.11(1), I am entitled to have regard to the reality of the situation which confronted the plaintiff and her legal advisors at the time the subpoena issued and to subsequent events. The focus is not solely upon the subpoena; the surrounding circumstances need to be considered.
46 What emerges clearly from the communications between Perpetual and the plaintiff's legal advisers between 26 July 2007 and the service of the subpoena on 2 April 2008, is that Perpetual despite its protestations to the contrary, was not co-operating in producing the documents requested.
47 Perpetual's email of 15 February 2008, apart from being internally contradictory, can only be regarded as discriminatory and patronising. On reading it, one could not help but ask would a person without the plaintiff's physical disabilities be required to periodically reconfirm their retainer of solicitors as a condition for being provided with co-operation by their trustee.
48 In my opinion it was quite apparent to the plaintiff's legal advisers by 15 February 2008 that Perpetual was not going to produce the documents requested unless some pressure was brought to bear on it.
49 The plaintiff commenced proceedings against her former solicitors on 7 March 2008. This enables an inference to be drawn that one of the reasons documents were sought from Perpetual was to enable those proceedings to be pursued. The issue of a subpoena for the production of documents against Perpetual fits neatly with that inference. There is no basis for suggesting that the issue of the subpoena had some collateral or improper purpose unrelated to the proceedings against those solicitors. The schedule to the subpoena is consistent with those documents being relevant to those proceedings.
50 In those circumstances I consider the issuing of the subpoena to be a reasonable response to the approach of Perpetual. The suggestion that the plaintiff should have commenced separate proceedings in the Equity Division to require the production of documents by Perpetual would not only have been time consuming but would have involved a needless expenditure of legal costs. In view of what we now know, i.e. the underlying intention of the plaintiff to bring proceedings against her previous solicitors or to at least consider the advisability of such a course of action, justified the issue of the subpoena against Perpetual.
51 It follows that the conduct of Perpetual leading up to the commencement of proceedings against the previous solicitors cannot be separated from the issuing of the subpoena and it is a matter which I can properly take into account in the exercise of my discretion under UCPR 33.11.
52 In relation to the second argument, there were undoubtedly confused signals being sent by both TF and Perpetual from the time when the subpoena was served. The problem was exacerbated when TC came into the matter on 15 May 2008. Thereafter, communications took place between TF and Perpetual and between TF and TC. This culminated in the misunderstanding which occurred in the days leading up to the production of the documents on 6 June 2008. What occurred was the inevitable result of not having a single point of contact but rather two separate organisations (TC and the legal section of Perpetual) communicating with TF on behalf of Perpetual. In saying that, I make no criticism of TC who came into the matter late. In that regard it seems tolerably clear from the email from TF on the evening of 5 June 2008 that Perpetual's legal department was not passing on information to TC (see [25] above).
53 The conclusion I have arrived at is that TF was not insisting on compliance with the subpoena on 6 June 2008 but that as a result of miscommunication (probably more on the side of Perpetual than TF) TC felt obliged to protect the interests of Perpetual by making sure that it was in a position to respond to the subpoena on that date. Given the somewhat imperfect nature of the evidence on this issue, I am not prepared to hold either side responsible for the miscommunication which occurred leading up to 6 June 2008. I do, however, conclude that TF was not insisting on compliance with the subpoena on that date and that is a matter which I take into account in the exercise of my discretion.
54 In relation to the plaintiff's third argument, I consider that the subsequent joinder of Perpetual as a party to the proceedings is relevant to the outcome of the motion. While it is clear that these proceedings have a long way to go (the parties are still in dispute over the form of the Statement of Claim), the overall areas of dispute are clear. It seems obvious that Perpetual as a party to the proceedings, will now have to produce either in answer to an order for discovery or a notice to produce, a wider range of documents than was required by the subpoena. That wider range of documents is likely to include the documents already produced. Given the close relationship between the allegations made against the previous solicitors and those made against Perpetual, it is difficult to see how documents relevant to the claim against those solicitors would not also be relevant to the claim against Perpetual.
55 It follows that Perpetual would have had to produce these documents and obtain legal advice in relation to them in any event. This is particularly so in relation to the claim for client legal privilege which led to the creation of Mr Sheller's affidavit of 25 August 2008.
56 It is true that when the subpoena issued and was served, Perpetual, potentially at least, gained an independent right to have its reasonable expenses of complying with the subpoena paid. It is that right which Perpetual now seeks to exercise. In considering that question, the Court is entitled to take into account what has actually happened following the issue of the subpoena, rather than to proceed on some hypothetical basis. Perpetual has now been joined as a party in the proceedings and I am satisfied that it will now have to produce by way of discovery or notice to produce a range of documents which will include those documents which it has already produced in answer to the subpoena. That is a matter which I take into account. Its cost of producing those documents would normally be part of its costs in the cause.
57 I have concluded that the plaintiff has displaced the prima facie entitlement of Perpetual to its reasonable costs of answering the subpoena served on it on 2 April 2008. For the reasons already outlined, the conduct of Perpetual left the plaintiff with little alternative other than to issue the subpoena and it was reasonable for the plaintiff to do so. The requirement for Perpetual to urgently answer the subpoena on 6 June 2008 arose as a result of miscommunications between it, TC and TF. Importantly, however, compliance with the subpoena on that date was not something insisted on or required by the plaintiff. Finally, the fact that Perpetual is now a party to the proceedings means that most probably it would have been obliged to produce all of these documents in any event.
58 It follows that I am not prepared to make an order in favour of Perpetual under UCPR 33.11(1). This does not mean that Perpetual is prevented from recovering its reasonable costs from the plaintiff in responding to the subpoena. The fairest result in the circumstances of this case, which was conceded on behalf of the plaintiff, is that Perpetual's reasonable costs in responding to the subpoena should be costs in the cause.
59 I should say something about the costs which have been claimed by Perpetual. Their initial assessment was $5,000 - $10,000 for responding to the subpoena. The claim ultimately made was for $55,000. From the affidavit of Mr Sheller of 25 February 2009 and from my own reading of the correspondence, I have concluded that much of those costs were incurred in the preparation of the "privilege" affidavit of 25 August 2008. At the time when that affidavit was prepared Perpetual knew it was going to be a party to the proceedings. In determining what documents were privileged and what were not and in providing the grounds for the claim of privilege, Mr Sheller would have had this clearly in mind. Accordingly, even if Perpetual had persuaded me to make the order sought in its motion, I would only have allowed part of the costs claimed and I would not have allowed anything for the costs claimed in respect of the preparation of the "privilege" affidavit. That document it seems to me was as much a product of the proposed joinder of Perpetual to the proceedings as it was a response to the subpoena.
60 Since the plaintiff has succeeded on this issue, I see no reason why she should not have her costs. Those costs, however, should be restricted to those incurred in dealing with this issue only.