The Law Society had power under paragraph 16 of Part II of Schedule 1 to the Solicitors Act 1974 to destroy old and redundant documents seized in connection with interventions.

Ian Purvis QC sitting as a deputy judge of the Chancery Division so held when allowing the claimant Law Society of England and Wales’ application for a destruction order under paragraph 9(10) of Part II of Schedule 1 to the Solicitors Act 1974. The judge held that it was only possible to allow the present application on the basis of paragraph 9(10) and not under paragraph 16 of Schedule 1. There was no defendant to the application. The Law Society sought a declaration from the court that pursuant to Schedule 1 to the Solicitors Act 1974, the Law Society (Solicitors Regulation Authority) had the power to destroy (or appoint agents to destroy) those of the documents over which it has acquired possession or control during an intervention and which it had reasonably identified as being no longer required for the purposes of the discharge of its powers and functions under Part II and Schedule 1 of the 1974 Act. The Law Society put its case on two bases: (i) that an implicit power to destroy was an incident of the Solicitors Regulation Authority’s (“SRA”) right first to take delivery of intervention documents and thereafter to deal with them in accordance with the statutory objectives under Part II of the 1974 Act; and (ii) that destruction could be justified under the general power in paragraph 16 of Part II of Schedule 1, namely that the Society may do all things which were reasonably necessary for the purpose of facilitating the exercise of its powers under the Schedule. The Law Society contended that retention of documents beyond a reasonable period may interfere with the interests of the public under article 8 of the European Convention on Human Rights and under the Data Protection Act 1998. The second part of the application was made under paragraph 9(10) of Part II of Schedule 1 to the 1974 Act, which gave jurisdiction to the court to make “an order as to the disposal or destruction of any documents [or other property] in its possession by virtue of this paragraph or paragraph 10”.

Article 8(1) of the European Convention on Human Rights provides: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

The fifth data protection principle codified in Schedule 1 to the Data Protection Act 1998 provides : “Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.”

IAN PURVIS QC said that the Law Society did have the power to destroy old and redundant documents seized in connection with interventions. Such a power could be justified as falling within the scope of paragraph 16 of Part II of Schedule 1 to the 1974 Act. Paragraph 16 was entirely general in its effect, giving a wide power to commit any act which could be justified as “reasonably necessary to facilitate” the Law Society in the exercise of its powers of intervention under the Schedule. This had to extend to any steps which were reasonably necessary: (i) to keep the costs of carrying out the statutory scheme within reasonable bounds and the quality of the scheme at reasonable levels; and (ii) to prevent the carrying out of the statutory scheme interfering with the legal rights of those whom it was designed to protect. On the first point, the destruction of entirely redundant documents necessarily improved any filing system by reducing the difficulties involved in the search process. Without document destruction, the cost and administrative burden of a filing system would become increasingly prohibitive. On the second point, the maintenance of redundant documentation beyond a reasonable period was likely to interfere with the interests of members of the public under article 8 of the European Convention on Human Rights and under the Data Protection Act 1998. The reduction in the risk of unlawful activity and/or interference with human rights facilitated the exercise of the Law Society’s powers because it had to seek to exercise those powers in a manner consistent with the law. When considering an application for mass destruction of documents under paragraph 9(10) the court had to take into account a number of factors. First, the cost and inconvenience of retaining the files, together with the data protection risks involved in doing so, had to be weighed against the risk of damage to clients through the loss of documents of real value if the files were destroyed. Second, the court was to consider the reality of what could have been expected to happen to those documents in the long run if they had been held by a responsible firm of solicitors. Finally it was to consider whether any alternative (or additional) solution was a practical, better alternative to the destruction sought. In the circumstances of the present case, whilst an order could not be allowed under paragraph 16, the application for a destruction order under paragraph 9(10) would be allowed in respect of documents which fell for destruction under the SRA’s document retention policy as put before the court.