Requesting a solicitors’ file, or merely a copy of a solicitors’ file, is a course of action that most frequently arises when disputes between clients and their solicitors occur, or are anticipated. It is perhaps no surprise then that such requests can prove highly contentious.
Where there are thought to be grounds for making a professional negligence claim against the solicitors, it is common to request the solicitors’ file in order to confirm the background events to the claim, to establish what documentary evidence exists to support or undermine the claim and, in turn, to better assess the merits of the claim.
However, requesting a solicitors’ file can also arise where there are concerns about the level of fees and/or expenses that solicitors have charged, where there may be grounds for making a complaint regarding the level of service provided by the solicitors, or where a loss of trust and confidence has led to new solicitors being instructed to progress an existing matter.
Whatever the circumstances surrounding the request, what may appear to be a simple step can in reality prove much more complicated and, in some cases, even costly. Therefore, in this client guide we have attempted to highlight and answer many of the questions that arise in relation to it, which we hope will provide you with a better understanding of the process and help you navigate it more efficiently and effectively.
There are any number of different reasons why you might request a solicitors’ file and (in England & Wales at least) there are no laws prohibiting you from doing so. Moreover, and to the contrary, there are a number of enabling laws that support the process. These include:
Which of the above applies is likely to depend on the reason for your request and, in the case of any related solicitor-client dispute, the litigation stage that you have reached.
Client requests are typically made for a copy of ‘the file’. This is often on the assumption that ‘the file’ will contain all correspondence and documents held by the firm in relation to a particular matter. While that may have been a safe assumption to make historically, when the solicitors’ file was in a hard-copy format and dutifully maintained by a conscientious secretary or filing clerk, it is less so now.
These days most solicitors work electronically, which means that correspondence and documents can be spread across an array of different devices, hard-drives and servers. Therefore, while an electronic matter file may well exist within a document management system, it may not be advisable to limit your request to this file.
For this reason too, and to avoid the disappointment and delay that can arise upon discovering that certain key documents are missing from ‘the file’, it is often prudent when requesting a solicitors’ file to state precisely what documents or categories of documents you require.
Requesting particular documents from your solicitors’ file as a preliminary step, rather than simply requesting ‘the file’, is also an option and might prove more time and cost efficient. It might also prove less contentious and, for the reasons set out below, all the more sustainable.
The issue of ownership of the file is distinct from, but sometimes relevant to, the issue of disclosure. In our experience, ownership is rarely considered by clients and, where it is, it is usually assumed that upon payment of the solicitors’ fees, all related documents belong to the client. However, the position is much more nuanced.
In July 2022 The Law Society published updated guidance which advised that, subject to the terms of the solicitors’ retainer, documents within a solicitors’ file are likely to fall within the following categories of ownership:
Documents owned by the client:
Documents owned by the solicitors:
Unfortunately, no express mention is made within the guidance as to which category solicitors’ attendance/file notes fall. As contemporaneous documentary records of discussions, sometimes occurring many years prior, these notes can be particularly helpful when trying to identify and assess historical events.
So far as those categories of documents falling within the latter category are concerned then, absent any legal obligation to provide disclosure, solicitors are much more likely at the pre-action stage to be entitled to refuse to release the original document or a copy of it.
There is no statutory time period for which solicitors must retain their files. Most solicitors will retain them for at least 6 years from the conclusion of the matter, while others will retain them for longer and often up to 15 years. These periods correspond with the primary limitation period and secondary limitation period within which professional negligence claims must be pursued.
This can be a particularly important consideration in professional negligence claims, where the mistakes made by the solicitors are not discovered until many years after the event, by which time the solicitors’ file may have been destroyed.
While the answer will be informed by the circumstances of your case, if there has been a long period of delay, or if the solicitors are subject to an intervention by the Solicitors Regulation Authority, it may be sensible for you to request the original file without delay or, at the very least, to ask for it to be preserved. Otherwise, in cases of professional negligence, this is a step that can be better left to the solicitors appointed to investigate and advise on your claim.
There is no prescribed form that must be followed when requesting a solicitors’ file. However, it is usually advisable to make your request in writing and to address it to a specific individual. This may be the solicitor or fee earner who dealt with the matter or, if they are not appropriate for whatever reason, either the managing partner or complaints partner.
As stated above, it can be helpful for all parties concerned if, as part of the request, you specify which documents or categories of documents you require.
Solicitors are not obliged to release a file in every case and solicitors might refuse to do so where a client has failed to pay outstanding fees owed to them. In this case, and regardless of which party owns the documents on the file, the solicitors may be entitled to exercise a lien over their own file and any other documents in their possession.
Where the solicitors have been instructed in the same matter by more than one client, they may also be prohibited from releasing certain documents. This most frequently occurs in relation to conveyancing transactions, where the same solicitors are retained concurrently by both a purchaser and a lender.
What action you can take to force your solicitors to release their file will depend on a number of factors, including the litigation status of any related dispute, the types of documents you are seeking and the basis upon which the solicitors are objecting to their release. As stated above, in certain circumstances solicitors may be legally entitled to withhold their file and/or particular documents contained within it.
However, where the documents being requested are relevant to an issue in dispute between solicitors and their client, and where the content of those documents would help to narrow or resolve that dispute, it may be in the solicitors’ own interests to release them, regardless of ownership or any lien. That may be all the more so where the solicitors would be required to disclose the documents at a later date and in the course of court proceedings.
If there are no related court proceedings, and if the solicitors have failed, without good reason, to comply with a client’s reasonable request for the release of documents belonging to it, then a complaint to the Legal Ombudsman may be appropriate. Alternatively, and if a professional negligence claim is anticipated, an application to the court for an order for pre-action disclosure may be justified.
As most solicitors now create and store documents electronically, this is a question that arises less and less frequently. However, where it does, the starting point are the terms and conditions of business that are contained within the solicitors’ engagement documents, which may or may not make provision for a charge to be levied for providing copies of documents.
A further consideration is the purpose of copying the file. If this is for the solicitors’ own records and in response to a request from a client for delivery up of documents which belong to them, it is less likely that a charge would be justified.
A data subject access request (‘DSAR’ or ‘SAR’) made under Article 15 of the General Data Protection Regulation (‘GDPR’) is not designed to be, and is not, an equivalent alternative to a written request for a solicitors’ file.
A SAR is a legal mechanism by which individuals are entitled to obtain a copy of the ‘personal data’ that is being held or processed by a Data Controller, as well as confirmation of the reason for it doing so.
In responding to a SAR, solicitors are not required to release originals or copies of documents that do not contain personal data. They are not even obliged to release originals or copies of documents that do contain personal data: it is sufficient that the solicitors provide the personal data itself, which can be collated and then recorded in a standalone document, created for the specific purpose of responding to the SAR.
Whether the solicitors elect to release copies of those documents which contain ‘personal data’, rather than extracting it, or any related documents, is a matter for the solicitors’ discretion. It is possible, therefore, but by no means assured, that some documents from the solicitors’ file might be released in response to a SAR.
Like many other aspects of the law, what might appear straightforward at first blush is in reality much more complicated. For this reason, and if you are intending to instruct new solicitors, it may well be preferable for them to attend to the request. Although it might seem that this approach is likely to give rise to potentially avoidable costs, in our experience it can in fact prove considerably more efficient and effective.
Alternatively, and if you wish to submit a direct request for documents to your solicitors, whether as a potential or an actual litigant in person, this guide will hopefully assist you in doing so. In that event, the timing, scope and purpose of the request are matters that you may wish to consider carefully.
If you are considering bringing a claim for professional negligence against your solicitors and require assistance, we would be happy to discuss the matter with you.
As professional negligence solicitors we act for clients nationwide, to resolve claims against a wide range of professionals, including claims against solicitors and other lawyers.
To arrange an initial consultation with us, free of charge or commitment, please contact us on 0800 195 4983 or by email at email@example.com.
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