IN THE MATTER OF SOLICITORS REGULATION AUTHORITY LIMITED

The court may authorise the destruction of non-original documents held following intervention in a solicitors’ practice where the proposed retention policy is sensible, proportionate and properly safeguards clients’ interests. Relevant considerations include storage costs, the likelihood of clients requesting files, alternative preservation methods and data-protection obligations.

Original documents require more careful consideration. Documents clearly deposited for safekeeping should ordinarily be treated as original documents, or otherwise protected by an equivalent retention regime. A policy may be approved for existing documents, but substantial future changes should normally be brought back to court and the policy should remain under review.

The Solicitors Regulation Authority applied under Part 8 for authority to operate its 2015 policy for destroying non-original documents acquired through interventions in solicitors’ practices. The application was made without naming a defendant because no obvious defendant existed.

The SRA relied on substantial storage costs, the limited likelihood of clients seeking older files, the expense of scanning or contacting clients, and data-protection considerations. The court also considered whether the policy adequately protected original documents, documents deposited for safekeeping and historic charge certificates.

1. The application was granted in principle. The court held that it had jurisdiction to authorise destruction of documents taken into the SRA’s possession following intervention and respectfully adopted the reasoning in the earlier decision of Mr Purvis QC.

2. The 2015 policy was a sensible and proper policy for non-original documents. The evidence showed that most files were returned within two years, very few were requested later, storage costs were substantial, scanning and client notification were disproportionately expensive, and the risk to clients under the proposed retention periods was negligible though not non-existent.

3. The approval was subject to further consideration of documents clearly marked or otherwise clearly designated as deposited for safekeeping. Such documents could be of importance comparable to original conveyances or wills and should be treated as original documents, or protected by an equivalent period of retention.

4. The treatment of pre-2003 charge certificates also required clarification. If they contained original charges of continuing significance, they should remain within the original-document category. If they were wholly otiose and contained no original charge, the policy could stand.

5. The SRA undertook to keep the policy under review. Minor amendments need not require a further application, but a serious change should ordinarily prompt the SRA to seek further court sanction. Any future application concerning destruction of original documents might require assistance equivalent to an amicus, and that issue should be raised when permission to issue without a defendant is sought.