(Relative to Client Matters) INCORPORATING POLICY IN RELATION TO RETRIEVAL CHARGES
Web Site publication Version 1 – May 2018 [reflecting the coming into force of the General Data Protection Regulations (GDPR)]
PHYSICAL PAPER CLIENT MATTER FILES
In addition to other considerations listed below, Client Matter files are retained by Woolliscrofts whilst any monies remain owing to us and (without prejudice to what follows) upon the basis that in relation to new matters commenced on or after 25th May 2018 Woolliscrofts reserve the right to destroy any file at any time and, entirely our discretion, to possibly instead retain digital (or, historically, microfiche) copies of some or all parts of any destroyed Paper File.
Further, or in the alternative, Woolliscrofts reserve the right to extend any minimum retention period referred to below upon the basis of any Risk Assessment which may (amongst a variety of other factors) additionally take into account the fact that the commencement of any Limitation Period applicable to potential claims against Woolliscrofts could be deferred upon the basis of, for example, Deliberate Concealment, Fraud, Mistake (having regard to SECTION 32 LIMITATION ACT 1980) or Undue Influence (where no defence under the LIMITATION ACT 1980 arises – so long as Undue Influence persists, claims can be brought whatever the period involved, provided only that once the claimant is no longer under the defendant’s influence, a claim must thereafter be brought within a reasonable time).
Moreover, all of what follows is subject to Law Society Guidance to the effect that if relevant retainers were silent as to what would happen to the file following the conclusion of the matter the client(s) should be contacted with a view to returning to them any papers belonging to them which a Solicitor is not intending to continue retaining and that any supporting documentation that is not the property of the Solicitor should not be destroyed without written permission from the client (and that if the relevant client(s) cannot be contacted the Solicitor should document the efforts made to trace the client(s) and carry out a Review / Risk Assessment before making any decision to destroy material not belonging to the Solicitor.
Files relating to Will drafting and the drafting of Powers of Attorney will generally be retained indefinitely (in the case of Wills, subject to the outcome of a possible Risk Assessment, even if Woolliscrofts believe or know that a later Will has been made – due to the possibility of any later Will being challenged) – although this may be reviewed in the event of Woolliscrofts being informed of the death of the Testator (at which stage any review would need to take into account the possibility of any challenge potentially being made to the Will and / or Power of Attorney or, in the event of Woolliscrofts dealing with the administration of the Estate of the deceased client, the Will and / or Power of Attorney preparation file may be amalgamated with the Estate Administration File – in respect of which a fresh Destruction Date would then apply) or in the event of a point being reached at which Woolliscrofts can be satisfied that the Testator / Donor would have reached the age of 110 years;
Files relating to the PURCHASE of real property will generally be retained indefinitely – although this may be reviewed in the event of Woolliscrofts being informed of the subsequent sale / disposal of the property in question (and in the event of Woolliscrofts being instructed to act in connection with any such subsequent sale / disposal it may be considered to be appropriate it may be considered appropriate to amalgamate the earlier Purchase File with the subsequent file – to which a fresh Destruction Date would then apply);
Files relating to the SALE of real property will generally to retained for a period of at least 15 years bearing in mind the 15 Year Long Stop provision of relevance to Negligence claims contained within SECTION 14B LIMITATION ACT 1980;
In the case of files relating to leases of up to 21 years, in view of the fact that there may be a prospect that we may be instructed in connection with renewal or early termination, the minimum retention period should be set as the later of :
- 15 years upon the basis of the 15 Year Long Stop provision of relevance to Negligence claims contained within SECTION 14B LIMITATION ACT 1980; or
- 1 year after the expiry date of the Lease.
Files relating to types of real property transaction OTHER THAN those mentioned above will generally to retained for a period of at least 15 years bearing in mind the 15 Year Long Stop provision of relevance to Negligence claims contained within SECTION 14B LIMITATION ACT 1980;
Files relating to the Administration of Estates will generally be kept for a period of at least 15 years following the death of the deceased bearing in mind the 12 years Limitation Period under SECTION 22(a) LIMITATION ACT 1980, the potential relevance of the “Executors Year” to such Limitation Periods and the 15 Year Long Stop provision of relevance to Negligence claims contained within SECTION 14B LIMITATION ACT 1980 (although in certain circumstances a longer Retention Period may be considered to be appropriate bearing in mind the fact that the 12 year Limitation Period can commence from a later date where the date upon which the right to receive property accrued after the date of death or expiry of the Executors Year);
Files relating to the Administration of Trusts will generally be kept for a period of at least 15 years after the end of the Trust Period in view of the power of HMRC to investigate assessments of tax for a period of 12 years after the end of the Trust Period and the 15 Year Long Stop provision of relevance to Negligence claims contained within SECTION 14B LIMITATION ACT 1980;
In the case of files relating to contentious / litigation matters (including Personal Injury claims) a retention period of seven years will generally be set (and a minimum retention period will never be set as less than six years having regard to SECTION 2 LIMITATION ACT 1980 and SECTION 5 LIMITATION ACT 1980) – HOWEVER:
- in any case where the client was a Minor the general retention period would generally be calculated as a period of 6 years from the client’s 18th Birthday having regard to SECTION 28 LIMITATION ACT 1980 and SECTION 38(2) LIMITATION ACT 1980; and
- in any case where the client lacks, or lacked capacity (within the meaning of the MENTAL CAPACITY ACT 2005) to conduct legal proceedings the general retention period would generally be calculated as a period of 6 years from the date upon which the disability ceased or ceases having regard to SECTION 28 LIMITATION ACT 1980 and SECTION 38(2) LIMITATION ACT 1980.
In the case of files related to any other kind of matter, or if there are any doubts as to the correct minimum Retention Period, reference is to be made to the Managing Director for guidance.
Following expiry of any minimum Retention Period (or any extension thereof) the date of actual destruction of files / documents / data will depend upon a number of practical / logistical considerations and factors –including, but not limited to:
- overcoming (particularly in relation to matters pre-dating the coming into force of the General Data Protection Regulations on 25th May 2018) potential difficulties / obstacles related to:
- separating files / documents / data identified as suitable for destruction from those with later minimum Retention Periods which have not expired which have historically been archived together in the same Archive Storage Box;
- taking steps to ensure that the terms of historical retainers (particularly those of former Legal Practices such as Bishops, Edward Hollinshead and the former Woolliscrofts Solicitors Partnership Practice) actually incorporated client consent to destruction (whether at all or within the timescale within which destruction is actually being contemplated) AND that important original legal documents or other property belonging to the client were not historically inappropriately allowed to remain within files at the time of them being closed and archived.
- reliance upon Third Party Contractors / Off-Site Archiving Facilities and the like.
ELECTRONIC CLIENT MATTER FILES
Electronic files held on our Conveyancing Case Management System are currently held on an indefinite basis – in line with our policy in relation to the indefinite Retention Period in respect of physical paper files of relevance to the purchase of real property. However, once our Conveyancing Case Management System contains 15 years worth of data it is envisaged that a review will at that stage be undertaken with a view to exploring the possibility of data related to the sale of real property being distinguished from data related to the purchase of real property, with a view to data related to sales potentially being destroyed following expiry of the minimum Retention Period described above in relation to physical paper Client Matter files relating to the sale of real property.
Insofar as other Electronic Files are concerned, addition to the considerations listed above in relation to physical paper Client Matter files of relevance to the factors which may influence the date of actual destruction once any relevant Retention Period has expired, the further precautions involved in ensuring that only correct electronic copies of content from relevant Network Folders is deleted. Consequently, given that:
- our Computer Network upon an Alphabetical Client Name basis (as opposed to by reference to different categories of legal matter involved); and
- there is no way of identifying Call Recordings by reference to the specific Client Matter to which they relate (as opposed to by reference to date of call and / or incoming or outgoing telephone number); our current policy is to:
- retain Call Recordings for a minimum period of 92 years (i.e. the 110 year period referred to above in the context of retention of physical papers files related to Wills and Powers of Attorney, less 18 years – being the minimum age at which it is generally possibly to legally execute such documents); and
- retain all other categories of Electronic Files for the shorter of:
- the 92 year period referred to above in the context of Call Recordings; and
- a period equivalent to any relevant minimum Retention Period set out above in relation to physical paper files if it is reasonably practicable for us to be able to identify with certainty electronic files capable of being deleted without a risk of other data being prematurely or otherwise inappropriately deleted (this being an issue which we intend to keep under review)
ACCOUNTS COMPUTER SYSTEM DATABASE OF PRESENT AND FORMER CLIENTS
For a variety of reasons – most notably the need for us to be able to identify potential Conflicts of Interests when being requested to act in connection with new matters – our current policy is to retain this category of data indefinitely.
STORAGE OF FILES AND DOCUMENTS & RETRIEVAL CHARGES
Following termination of the retainer between us or receipt of payment by us in respect of our final invoice (whichever is the later), our policy is to store your file without cost to you for a minimum period of time (ranging from 6 years to indefinitely and other periods in between) determined by the nature our your matter and the Retention Policy of this Company from time to time in force (the details of which can be accessed on our Web Site or requested by e-mailing our Data Protection Officer), after which it will automatically be destroyed as soon as reasonably practicable for us having regard to the factors outlined within our Retention Policy. without further reference to you. “Store” means either (at our option) the simple storage of any paper (either within our own business premises or at the premises of a Third Party Archive Storage Facility) the file or scanning that paper and retaining it electronically (and, at our discretion, possibly destroying the paper immediately thereafter). Information gathered electronically in the course of the transaction will continue to be so stored.
By instructing us to act on your behalf, you thereby expressly consent to us destroying your file as set out aboveunless you notify us otherwise in writing and it is, therefore your responsibility to specifically ask for any papers which you wish to be returned to you and to bear responsibility for any costs which may be involved in us acting upon such a request.
If you do not want your file to be stored and destroyed after completion of your matter, you may collect your file from us provided you notify us in writing before or at the time of making payment of our final invoice, or you may ask us to retain the entire file for a specified period beyond the minimum retention period upon payment of a sum in respect of reasonable storage charges (details available upon request).
Whilst we normally retain files for the minimum period of time from time to specified by our Retention Policy, we nevertheless only keep files strictly on the understanding that we shall have no responsibility or liability to you if documents left in our possession are lost or destroyed at any time.
If we retrieve papers, files or documents from archive storage or Safe Custody in relation to continuing or new instructions paid for by you we will not normally charge for such retrieval and, if appropriate subsequent return to archive storage or safe custody. However, if you (or any Attorney or other appropriately authorised agent acting on your behalf) or the Personal Representative(s) of your Estate require the retrieval of any papers, files or documents after completion of your matter in any other context, we reserve the right to charge for arranging the retrieval and, if appropriate any copying and / or delivery requested by you and / or any reading, correspondence or other work necessary to comply with your request – including verification of identity and / or any subsequent return of items to archive storage or Safe Custody. At present a minimum charge (currently £16.67 plus VAT – although this is subject to future increase upon the basis of any such change being published on our Web Site) applies to chargeable retrievals, HOWEVER, we reserve the right to, at our discretion, instead make a charge based upon the basis of you indemnifying us in respect of any expenses which we incur together with an additional charge to reflect the actual amount of time expended by us in dealing with your request upon the basis of our Hourly Charge Rates in force at the time of us receiving and / or acting upon your request (details of which are published on this Web Site) if the amount of that alternative basis of charging exceeds the minimum charge rate in force at the relevant time.
If you request the return of your file, papers or documents you agree to us retaining copies in our possession (at no cost to you) in order to enable us to comply with Statutory and / or Regulatory requirements and / or for our Risk Management purposes in line with whatever retention period is envisaged by our Retention Policy in respect of the particular type / category of documentation in question.
ORIGINAL IMPORTANT LEGAL DOCUMENTS LEFT WITH US FOR SAFEKEEPING
We will not intentionally destroy important legal documents which you have asked us to retain in Safe Custody, such as Wills, Powers of Attorney or Deeds. Nevertheless, whilst we will endeavour to take care of Safe Custody documents in respect of which you have been provided with a Safe Custody Storage Number, given that we do not currently make any charge to clients for holding documents in Safe Custody (in which regard we reserve the right to introduced a charging policy at any time in the future after first of all providing reasonable notice to you by way of amendment of this Policy Document and the publication thereof on this Web Site), we do so strictly upon the understanding that should any such document be lost or damaged we will not be liable for their replacement or for any resultant loss.
Consequently, this category of documentation is retained until retrieved at the request of the clients or their appropriately authorised agents / representatives.
AMENDMENTS TO THIS POLICY
This Policy is reviewed at least annually and we reserve the right to make changes to this Policy in our absolute discretion at any time – with publication of any future / updated versions on this Web Site representing sufficient notice to all current and former clients of any such changes.