By Tony Reynolds and Simon Lusk -
Snapshot
- Detailed and contemporary file notes are essential to the successful defence of professional indemnity claims.
- Practitioners should always keep original file notes, or at least copies, when transferring files.
Few practitioners need to be educated about the importance of keeping detailed file notes. File notes are not legal advice per se, and they do not of themselves provide a legal defence to a professional indemnity claim. However, detailed and contemporary file notes are essential to the successful defence of professional indemnity claims in which the client’s oral instructions or the terms of oral advice are in issue.
These contests typically occur years after the actual conversation and, as the High Court noted in Fox v Percy 214 CLR 118; [2003] HCA 22 [at 31], in these contests judges seek to base their findings on ‘contemporary materials, objectively established facts and the apparent logic of events’ in order to diminish their reliance upon an assessment of witnesses’ credibility alone when making findings of fact.
While contemporary file notes will not be determinative of the credit issues, they still have an important part to play. Further, practitioners should always consider confirming oral advice in writing, and be aware that the integrity of that correspondence itself may be tested against the file note of the earlier conversation.
