IN THE MATTER OF SOLICITORS REGULATION AUTHORITY LIMITED

The Solicitors Regulation Authority applied for the court's authority to destroy non-original documents in its possession from interventions in solicitors' practices by applying an existing retention and destruction policy (the 2015 policy). The court accepted that it has jurisdiction to authorise destruction of intervention files and adopted the reasoning of the earlier decision of Mr Purvis QC ([2015] EWHC 166 (Ch)) that the SRA has statutory and/or court-granted powers to deal with such materials.

The court approved the application in respect of non-original documents presently held by the SRA because (i) perpetual storage imposed an unreasonable cost burden, (ii) the Data Protection Act 2018 and the Information Commissioner’s Office supported destruction of personal data after appropriate retention periods, and (iii) empirical evidence demonstrated that requests for files occur overwhelmingly within a short period after intervention. The court declined to approve destruction of original documents and directed further consideration of documents clearly deposited for safekeeping and of the status of charge certificates before destruction of those categories would be approved.

This was a Part 8 application by the Solicitors Regulation Authority for an order permitting the destruction of non-original documents which the SRA had acquired as a result of interventions into solicitors' practices. The relief sought was an order authorising implementation of the SRA's 2015 file and retention policy in relation to documents currently in the SRA's possession.

• Background and facts: The SRA has taken into possession large numbers of client and practice files following interventions and faces substantial ongoing storage costs. The SRA had previously consulted and operated a revised policy (the 2015 policy) for several years and sought court approval to apply that policy to documents acquired since the earlier authorisation. The SRA relied on statutory authority under the Solicitors Act 1974 and on its obligations under the Data Protection Act 2018; the Information Commissioner’s Office had been consulted and accepted the proposed treatment of personal data.
• Issues for decision: (i) whether the court should authorise destruction of non-original documents currently held by the SRA under the 2015 policy; (ii) whether any special treatment or independent assistance was required for potential future applications to destroy original documents; and (iii) whether particular categories such as documents deposited for safekeeping or charge certificates required different treatment.
• Court’s reasoning and conclusions: The court adopted the statutory and jurisdictional analysis in Mr Purvis QC’s earlier judgment and accepted that the SRA may destroy non-original documents in its possession in accordance with a reasonable retention policy. The judge accepted the SRA's evidence of the substantial storage costs, the small probability that clients will seek older files (supported by the SRA's statistics), and the ICO's acceptance of the data-retention approach. The court therefore authorised the SRA to destroy non-original documents in its current possession in accordance with the 2015 policy, while:
• — declining to authorise destruction of original documents at this stage and indicating that future applications about originals may require additional independent assistance (for example, an amicus) given the greater significance of originals;
• — requiring the SRA to consider and address whether documents clearly marked or designated as deposited for safekeeping should be treated as originals and retained accordingly before final approval;
• — asking the SRA to investigate whether historic charge certificates should be treated as originals and to make submissions to the court if amendment to the policy is needed.

The court accepted an undertaking that the SRA would keep its policy under review and authorised destruction on a rolling basis of non-original documents currently held, subject to resolution of the safekeeping and charge-certificate points.

The court granted the application in part. It authorised the SRA to destroy non-original documents currently in its possession in accordance with the 2015 file and retention policy (to operate on a rolling basis), relying on statutory power and the court's jurisdiction and on evidence of cost, client behaviour and data-protection considerations. The court refused to approve destruction of original documents and required further consideration and submissions concerning documents clearly deposited for safekeeping and the status of charge certificates before those categories could be treated as non-original for destruction purposes.