Whose ‘file’ is it anyway?

When I get approached by clients who wish to bring a claim for professional negligence against their solicitors, the first thing I advise them is to get hold off their files. Whilst a client may have much of the relevant documentation, I can never be sure that it is the entire file which is usually required for a thorough examination of the merits of the case.

Sometimes there is a misconception that a client is entitled to everything in their file. This is strictly not true, even if they have paid for everything in that file.

Ownership of documents

The Law Society publishes a guidance on ownership of documents (which although dated form 1999, is still good practice)

There is a distinction between letters to/from the client themselves (which does not belong to the client) and letters to/from third parties (which do belong to the client).

• Documents prepared by third parties, such as barrister and experts, belong to the client.
• Documents prepared by a solicitor for their own benefit or protection will not belong to the client and includes things like internal e-mails/memos, notes of meetings or telephone calls with a client, recordings of conversations etc

Destruction of documents

Also what happens if the solicitor has destroyed the file? The general rule is that a file will be kept for 6 years after a matter was completed (which should be specified in a client closing letter). In some cases, such as conveyancing matter, it is advisable for solicitors to retain file for longer. More and more solicitors will operate an electronic case management system which makes paper files redundant and so you should be able to create most of the file from a backup system.

Could the client get their files through a Subject Access Request (“SAR”)?

Your personal data

Under s7 of the Data Protection Act 1998, an individual can make a request for certain information about personal data held and processed by an organisation.

Guidance on this subject is provided by the Information Commissioner’s Office

A distinction should however be noted that it’s the personal data itself that is disclosable rather than copies of documents containing that personal data (although in practice it may make no difference).

To be classed as ‘personal data’ it must relate to a living individual and allow that individual to be identified from that information (either on its own or in conjunction with other information likely to come into the organisation’s possession).

An organisation does not have to comply with a SAR if it means that personal data from a third party is also disclosed.

Also there is the legal professional privilege exemption which may apply, especially if proceedings is contemplated or in progress.

But if that is the case then the client could consider making an application for pre-action disclosure under Civil Procedure Rules 31.16.

If proceedings have already started, then the client will be entitled to disclosure of documents which are relied upon and adversely affects or supports a party’s case (Civil Procedure Rules 31.6)

The sooner and earlier that a client obtains his files before embarking on expensive and lengthy litigation in a potential professional negligence case the better, and should be the first step before they even consult another solicitor about the merits of going down this route.