Data Retention and Destruction Policy

1. Introduction

This policy sets out how long data will normally be held by us and when that data will be confidentially destroyed.

“Data” includes all records and documents, including client matter files and both hard copy (paper) and soft (electronic) records and documents.

 

2. Legal and Regulatory Background

There are a number of legal and regulatory factors which impact on our obligations to retain, safeguard but also to destroy data, including:

 

1. Data Protection

Article 5 of the General Data Protection Regulation (GDPR) says that Personal Data should be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed. Our client matter files will contain a lot of Personal Data.

 

1. SRA Code of Conduct

An obligation to meet the SRA Principles including:

8. We must run our business or carry out our role in the business effectively and in      accordance with proper governance and sound financial and risk management principles
9. We must protect client money and assets.

 

We must also achieve specific SRA Outcomes and address relevant Indicative Behaviours, including:

• O(4.1) you must keep the affairs of clients confidential […]
• O(7.5) you must comply with legislation applicable to your business, including anti-money laundering and data protection legislation
• IB(7.1) safekeeping of documents and assets entrusted to the firm (“Assets” is defined as including “money, documents, wills, deeds, investments and other property”)
• IB(7.3) identifying and monitoring financial, operational and business continuity risks including […] data protection, IT failures and abuses, and damage to offices

 

We are also required to provide information on complaints to the SRA annually and must therefore retain records on complaints for at least one year after the complaint is closed, resolved or concluded.

 

1. SRA Accounts Rules

The Accounts Rules mean that we must keep some records for two years and others for 6 years:

• 2 years: authorities for withdrawals from client account (other than cheque requests) and paid cheques
• 6 years: client account records, designated client account records, office account records, account ledgers, reconciliations, bills, bank and building society statements, passbooks and online records

 

1. AML Compliance

The Money Laundering & Counter Terrorism Regulations mean that we must retain evidence of identity and transactional records for at least five years after the last matter for the client has been closed.

 

1. Limitation Periods & Claims

Our need to keep hold of client matter files in case of a claim means that we need to balance our obligation to destroy data (see Data Protection above) against a consideration of limitation periods.

 

The Limitation Act 1980 sets out a number of different limitation periods for a range of different causes, including:

• s.2 An action founded on tort shall not be brought after the expiration of 6 years from the date on which the cause of action accrued.
• s.5 An action founded on simple contract shall not be brought after the expiration of 6 years from the date on which the cause of action accrued.
• s.11 Actions in respect of wrongs causing personal injury or death must be brought within 3 years of the date of cause or knowledge (if later)
• s.14A extends the limitation period by 3 years for negligence actions where relevant facts were not known at the date of accrual
• s. 14B sets an overriding time limit for negligence actions (not involving personal injuries) of 15 years from the date of the negligent act or omission even if the cause of action has not yet accrued.
• s. 21(3) sets a limitation period of 6 years for breach of trust claims
• s. 22(a) sets a limitation period of 12 years for claims against Personal Representatives
• s. 28 means that where the person concerned is under a disability (e.g. where they are a child, lack capacity or are suffering undue influence) time won’t start to run until they are not under a disability; for a child this means their 18^th birthday.

 

On the basis of these limitation periods all client matter files must be kept for at least 6 years, however as there is a 4 month period during which a claim form issued on the last day of the limitation period remains valid for service, our default retention period for matter files has been set at 7 years.

 

3. Our process

Our Terms of Business explain our approach to retention and storage to clients: [current wording]

Documents, Files and Storage

While we are working for you we will keep a paper and/or an electronic file. Once the work is complete we will retain an electronic file and may also retain a paper file. If at the end of your matter you require documents from your file please let us know.

 

We are entitled to keep possession of all documents or papers that belong to you if you owe us money.  This is known as a “solicitor’s lien”.

 

We will retain our files in accordance with our Document Retention Policy, which may change from time to time.  We reserve the right to destroy files without further notice to you at the end of that retention period, which is currently six years after the conclusion of the matter for most files.

 

We are able to keep important documents such as Deeds and Wills in safe custody on your behalf for longer periods if you would like us to.

 

If we are asked to retrieve or provide copies of stored documents we will make an administration charge of an amount to be determined (at our discretion) at the time of your request. Our current charge is £75 + VAT.

 

Client matter files should be closed promptly. Files which are being closed and sent for off-site storage must be reviewed before being sent for storage. Original valuable documents must be removed from hard copy matter files and stored separately; the retention period for original valuable documents is not necessarily the same as the retention period for the matter file concerned. Please refer to the MILO guidance on File Closing and the separate Archiving Policy.

In order to ensure that we do meet the Data Protection requirements and to avoid the build up of stored data we will not invite responsible fee earners to retrieve and review stored matter files before destruction.

Data will be retained for the period specified in the Retention Schedule below. Hard copy and electronic information and documents must be deleted at the end of the retention period.

 

Hard copy matter files must be reviewed before being sent to storage. Original valuable documents should be removed and stored separately. Responsible fee earners will not be invited to review stored files before destruction.

 

4. Retention Schedule

Type	Description	Retention Period
Valuable documents	e.g. Original Deeds, Wills, Share Certificates, Trade Mark Certificates, Power of Attorney, Grant of Probate	Retain indefinitely
Client Matter Files	Matter files (unless specified below)	Default is 7 years after closing (unless specified below)
	Disability: matters where client is under a disability i.e. lacks capacity or is a child	7 years from 18th birthday/end of disability
	Children: Other matters which involve children	7 years from 18th birthday of youngest child
	Tax advice/estate planning matters	7 years after death
	Trust matters	Duration of trust + 7 years
	Tax return matters	15 years after closing
	Property: commercial property sales/purchase, sale of leasehold property, and purchase (but not sale) of residential property matters	15 years after closing
	Deputyship & Attorneyship matters	15 years after death
	Will & probate matters	15 years after death
	Notary matters	Retain indefinitely
	Charity matters	Retain indefinitely
	Pension scheme matters	Retain indefinitely
	Company formation and partnership agreement matters	Retain indefinitely
AML	CDD – originals	Do not retain
	CDD – scanned copies	5 years after last matter for client closed
	Transactional records	5 years after last matter for client closed
Q&R Matters	Complaint & Claim Files & Records	7 years
	Misconduct	15 years
	DPA Subject Access Request (non-employee/non-partner)	15 years
Marketing Database/CRM	Contacts	2 years after no activity
Finance Records	Client Account Records, including cheque requests, remittance advices and authorities for withdrawals from client account	6 years
	Management Accounts and Budgets	6 years
HR/Personnel Records	Recruitment records – unsuccessful candidates	1 year
	Personnel Records, including ·       recruitment records ·       new starter information ·       terms & conditions/contracts and partnership agreements ·       training records ·       salary, payroll,  compensation & other benefits ·       disciplinary records ·       working time records ·       absence (holiday, sickness and maternity/ paternity leave ·       redundancy records	6 years after employment/ partnership ceases
	Pension/retirement benefit records	12 years after benefit ceases
	Income tax, NI records and correspondence, Statutory Maternity Pay (SMP) and Statutory Sick Pay (SSP) records	3 years after the end of the relevant tax year
	Health & Safety Assessments	Retain indefinitely
	Staff/Partner photographs	Destroy on departure from the firm
	DPA Subject Access by Staff/Partner	15 years
Other Firm Records	Project documentation	6 years
	Accident books, reports and records	3 years from the date of the last entry
	LLP and Company Records	15 years
	Supplier contracts & NDAs	Duration of contract + 2 years after ceases
	Software licences	Duration of contract + 2 years after ceases
	IT System back up tapes	1 year
	IT System log audit	1 year
	CCTV	14 days

 

5. Related Guidance and Advice

Guidance on related issues is available on MILO including:

 

• Data Protection and GDPR
• File & Document Management
• File Closing
• Archiving Policy
• Information Security Policy
• Ownership of Solicitors Files

 

If you need further advice please contact a member of Quality & Risk, Facilities or the IT Team.

 

6. Ownership & Review of this Document

 

This document is owned by the Director of Quality & Risk and will be reviewed at least annually or as the need arises.

 

Version	Purpose/Change	Author	Approved by	Date
001	Policy review in preparation for GDPR	Anna Hudson	Anna Hudson	6th Mar 2018
002	Updated to make specific reference to Notary matters	Anna Hudson	Anna Hudson	24th April 2018
003	Updated to make specific reference to Trade Mark certificates	Anna Hudson	Anna Hudson	5th March 2019