The Law Society (Solicitors Regulation Authority)

The Law Society has power under paragraph 16 of Part II of Schedule 1 to the Solicitors Act 1974 to destroy old and redundant intervention documents where destruction is reasonably necessary to facilitate the statutory scheme. That includes maintaining an effective filing system, controlling costs and reducing data-protection and human-rights risks. The court should balance the cost and risks of retention against the risk of harm to clients, consider what a responsible solicitor would ordinarily do, and assess practical alternatives. A general declaration was inappropriate because the proposed formulation was vague and the application was unopposed. However, an order under paragraph 9(10) was made permitting destruction in accordance with the approved retention policy, including on a rolling basis.

The Law Society, acting through the Solicitors Regulation Authority, applied without a defendant under CPR Part 8. It sought a declaration that it could destroy documents obtained during interventions into solicitors’ practices and an order under paragraph 9(10) of Part II of Schedule 1 to the Solicitors Act 1974.

The documents comprised approximately 1.5 million non-original files from 885 interventions. The issues were whether the Society had an inherent or general statutory power to destroy redundant documents without a court order, whether a declaration should be granted, and whether the court should authorise destruction under paragraph 9(10).

1. Statutory power. The court rejected the submission that the power to destroy was an inherently necessary incident of the powers under paragraphs 9 and 10. However, paragraph 16 conferred a general power to do what was reasonably necessary to facilitate the exercise of the intervention powers. That power included maintaining a reasonable filing and archiving system, controlling costs, improving accessibility and avoiding unlawful interference with clients’ rights.
2. Retaining redundant personal data beyond a reasonable period was capable of increasing data-protection and Article 8 risks. Destruction could therefore facilitate the statutory scheme by helping the Society exercise its powers consistently with the law.
3. Declaration. A declaration in the terms sought was refused. The proposed wording was vague and imprecise, the application had no opposing party, and a declaration in those circumstances would have no material estoppel effect.
4. Destruction order. In an application under paragraph 9(10), the court should weigh the cost, inconvenience and data-protection risks of retention against the risk of losing documents of real value to clients. It should also consider what would happen under a responsible solicitor’s retention policy and whether scanning, client notification or another alternative was practical.
5. The proposed policy retained files for at least seven years, preserved original documents indefinitely, required pre-destruction checks and imposed longer periods for specified categories. The evidence showed that very few files were returned after five or six years, that responsible firms would ordinarily destroy comparable non-original files, and that proposed alternatives were prohibitively expensive. The application was therefore allowed. The order was extended to all documents presently held under paragraphs 9 and 10, permitting a rolling destruction scheme for seven years, subject to the retention policy.

First-instance decision. No earlier appellate stage is stated in the judgment.