The Court granted preliminary discovery under UCPR r 5.3 permitting a plaintiff's legal representatives to inspect (but not copy or photograph) a solicitor's file to determine whether a professional negligence claim existed, notwithstanding the solicitor's assertion of a retaining lien over the file for unpaid costs. The Court held that a solicitor's lien is not a complete answer to a preliminary discovery application where the prospective claim is one of negligence against the solicitor itself, reasoning that it would be incongruous for a solicitor to resist preliminary discovery via a lien when the file would inevitably need to be disclosed if proceedings were commenced. The Court declined to require security in the amount of the unpaid judgment debt ($290,000) as a condition of discovery, finding this would effectively preclude the plaintiff from pursuing a valid cause of action.
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