Release of file as a remedy to resolve a complaint
We are often asked by complainants to direct their service provider to release papers to them – either specific documents, or their entire file of papers. There are a number of reasons for this – perhaps the complainant wishes to pursue an appeal or further work with a different provider, or they may have concerns about the work that the service provider has done and want to understand what has been done and what costs they have incurred.
There are a number of considerations we need to make when we do this, including the issue of what constitutes a file and how and when we can direct the provider to release papers, and I want to set out our approach to dealing with these issues in this month’s column.
What constitutes a file?
The complainant will, understandably, want and expect their service provider to release all documents that they hold in their client file to them. However, the client does not own all documents contained in the file and it may not be appropriate for us to direct the service provider to release all papers and documents that they hold.
We follow the Law Society guidance on what constitute a file. Documents that the client owns includes those that they sent to the service provider; documents sent or received by the service provider as an agent of the client; documents produced for the benefit of the client by the service provider in the course of the retainer, for example agreements and advice; and documents prepared by other advisers representing the client, for example expert reports and barristers’ advice. It will usually be fair and reasonable to direct the service provider to release these to the complainant if they have provided poor service in failing to do so, with some exceptions which I will address below.
However, the service provider owns all documents they or others prepare for their own benefit or protection, as well as internal communications created during the retainer, and documents prepared to help the service provider do their job, for example drafts and working documents, and accounting records and information. It may be appropriate in some circumstances to direct a service provider to release these documents – for example, estate accounts to a lay executor, but release of these documents is not an absolute right and we always consider whether it is fair to direct the service provider to release these documents before we do so.
The file is likely to comprise documents both in hard copy and electronic documents. For our purposes however, we would always expect the service provider to provide paper copies of all documents – we cannot assume that the complainant has ready access to a computer and will be able to view the documents electronically.
Lien
Where a service provider tells us that they have a lien over the papers in circumstances where there are unpaid fees owing to them, we would not direct the service provider to release papers which would form part of that lien.
Beneficiaries and executors
Executors, be they lay executors or professional executors who instruct a service provider to undertake work in the administration of an estate or trust, are the service provider’s client and have the right to have a copy of the papers that they own. Beneficiaries are the recipient of the service provider’s service and can complain about it, but they do not have the same right to receive papers that the executors do. We would always consider whether it is appropriate to direct a service provider to release papers to a beneficiary before we take this step.
Allegations that documents are missing in a returned file of papers
We do unfortunately occasionally receive post-decision correspondence from complainants, saying that the service provider has failed to provide all of the relevant papers, or that documents or correspondence are missing from the file. We always ask a service provider to keep proof of sending – either evidence of posting or, if the papers are collected by hand, a signed receipt, in case there is any subsequent dispute about this.
However, our approach where there is a dispute over sent papers is that we are unable to enter into correspondence about this unless we are satisfied on the balance of probabilities that the service provider has withheld papers, in which we can pursue enforcement proceedings against them. On most occasions however we are simply unable to determine whether a service provide held any particular document or documents, or whether they sent them within the file of papers.
File Redactions
A service provider may ask us whether they can redact papers before sending it to a complainant, for example where documents make reference to a co-defendant(s) or others involved in litigation which it is not appropriate for the complainant to see. This is a reasonable request in those circumstances and we do not have an issue with service providers redacting papers which contain information that the complainant does not have a right to see.
Overall therefore, if we are directing a release of file, our approach is that it has to be reasonable for the complainant to receive the papers, that we are specific where appropriate on what we are asking the service provider to provide and we ask them to retain proof of sending or a receipt as applicable.
