Whose File Is It Now?
A client may have a number of reasons why they want a copy of their files from their solicitors. During the course of a case, they should have been sent copies of all relevant documents and correspondence anyway.
However, just because a client has paid for legal services, this does not entitle them to everything in their file from their solicitors.
The Law Society updated its guidance (Who owns the file?) on 9 September 2021, the last edition being 16 January 2019.
The relevant sections state:
Documents which come into existence during the retainer can be in either one of two categories:
- where the solicitor is acting as professional adviser, and
- where the solicitor is an agent of the client.
The main example of material in the latter category is correspondence with third parties where the solicitor is sending or receiving correspondence on behalf of the client. On the normal principles of agency, these documents belong to the client.
Where the solicitor is acting as professional adviser, ownership of documents depends on the purpose of the retainer and whether the production of the document was a stipulation of the retainer.
Illustrations are provided of what documents are owned by whom:
- original documents sent to the firm by the client will continue to belong to the client, except where title was intended to pass to the firm
- documents sent or received by the firm as the agent of the client belong to the client. final versions of documents, the production of which was the object of the retainer, belong to the client.
- final versions of documents prepared by a third party, including the client’s other advisers, during the course of the retainer and paid for by the client belong to the client.
- documents prepared for the firm’s own benefit or protection, or documents prepared as the means by which the firm discharges its function, belong to the firm. copies of internal emails and correspondence created during the course of the retainer, and all emails and correspondence written by the client to the firm belong to the firm
- accounting records, including vouchers and instructions, belong to the firm
Where you have more than one client you need to consider which client actually owns the documents in the file and whether consent will be required to disclose.
A client also has a right to make a Subject Access request for their personal data under the GDPR/Data Protection Act 2018 which may provide additional disclosure of documents. Although bear in mind that the request is in relation to specific personal information and not to documents as a whole.
As the Law Society has confirmed:
There is no obligation on a firm in responding to a SAR to provide full copies of documents or even those parts of documents containing the personal data.
As long as the personal data is provided, it can be:
- extracted from the original documents and presented as part of a new document created for the purposes of responding to the SAR or
- presented in its original format with any other information redacted where this is not the individual’s personal data
The contractual retainer should also be checked to see whether terms have been agreed in respect of ownership of documents. For example, a solicitor may exercise a lien over any documents belonging to client in relation to unpaid fees. A solicitor may also charge for the provision/return of documents.
Sometimes a client will request a copy of the file as the first step to making a complaint or even a claim for professional negligence.
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.
Whilst fishing expeditions are not permitted under the Pre-action Protocol for Professional Negligence, parties will need to comply with duties of disclosure under the Civil Procedure Rules which states that you normally need to disclose all relevant documents
- on which you rely
- which adversely affect your own or the other party’s case
- or which supports the other party’s case
If your case is being litigated in the Business and Property Courts of England and Wales, then since 1 January 2019 the disclosure pilot will apply, which is intended to encourage co-operative disclosure at an earlier stage in the proceedings.
A client should bear in mind why they want a copy of their files – what it is in the files that they really want to get hold, so that they can assess the correct approach to obtaining this information bearing in mind the pitfalls identified above.
A solicitor should not be obtrusive for the sake of it and comply with all reasonable and proportionate requests so that any issues can be identified and even dealt with early on.
The Law Society has set out that solicitors need to act reasonably:
Whilst the above sets out who owns which documents on the file, it is of course for you to decide whether you wish to comply with a request from a client to provide documents that belong to you.
In coming to your decision, you may wish to take into account whether the request is reasonable in light of all the circumstances.
If you are in need of specialist legal advice call our highly experienced Dispute Resolution experts on 0808 252 5231 who will be able to assist. Alternatively, you can request a call back or get in touch online.