Joint notice from HMCTS on removal of court bundles
4 April 2019
HMCTS court bundles notice
This notice (below) that HMCTS recently published (referred to
in last week's BarTalk) regarding court bundles
specifically seeks to clarify that those bundles which belong to
the court are not the responsibility of legal professionals -
whether barristers or solicitors. This follows the previous
directive issued by HMCTS, which stated that legal representatives
must dispose of all bundles, including those belonging to the
court. We were specifically asked to clarify that distinction by
several members of the Bar, which is how the notice came about.
The notice does not take a view on the separate question of
whether it is barristers or solicitors who are responsible for the
remaining bundles, since that is a matter that will need to worked
out between them. Our IT Panel of expert barristers has, however,
produced extensive guidance on GDPR and what it may mean for the
Bar, which you can find via this link. In particular, the FAQs
document gives suggestions of suitable approaches to take when
considering where to leave papers and devices during hearings.
Find out more here: https://www.barcouncilethics.co.uk/wp-content/uploads/2017/10/GDPR-Frequently-Asked-Questions-1.pdf
Many of you will be aware of notices previously published in
some courts, advising that legal representatives are obliged to
remove all court bundles after hearings or risk being reported to
the ICO. These notices caused some confusion, as they did not make
a distinction between papers belonging to the representatives and
those served on the court.
The Bar Council has met with HMCTS to clarify the correct
position, namely, that only those bundles belonging to barristers
and solicitors should be removed by them. Barristers and solicitors
should not remove bundles which have been served on the court, as
they are not data processors for the court.
HMCTS has now issued a joint notice confirming this position,
the wording of which can be found below.
"HMCTS advises that following discussion between the Bar
Council, the Law Society and HMCTS it has been agreed that the
parties' copies of court bundles and papers, and papers and copies
of documents provided for the use of witnesses, i.e. not those that
have previously been filed with or supplied for the exclusive use
of the court, are the sole responsibility of those parties'
representatives as data controllers. As data controllers you are
required to make the necessary arrangements to remove them
immediately following the end of your court hearing.
"HMCTS and its staff are not responsible for the safe storage,
transport or destruction of these bundles and/or papers.
"If bundles and papers containing special category (formerly
sensitive) personal data are left unattended or unsecured in the
court or court building then HMCTS may consider it necessary to
report that a personal data breach has occurred pursuant to the
General Data Protection Regulation and Data Protection Act
2018.
"The Bar Council and the Law Society endorse the contents of
this notice."