Withheld documents

Withheld client documents
Where documents* and records are not owned by you as a member in practice, they generally belong to the client.

To determine whether documents and records belong to you, you will need to consider:

• the capacity in which you act in relation to your client
• the contract between you and your client (see Terms of Engagement)
• the purpose for which the documents and records exist or are brought into being.

* Members should be aware that the term 'documents' is not confined merely to documents stored on paper, but extends to any information which can be understood by the senses or is capable of being made intelligible by the use of equipment.

That means the term covers information that is stored on microfilm or electronically, for example on hard or floppy disks, including messages sent by email.

What is a lien?
A lien is a right of a person to retain possession of the owner's property until the owner pays what he owes to the person in possession'.

A particular lien is a lien over property which can be retained only until payment of a particular debt due in respect of it is paid.

The courts favour particular liens as being equitable between debtor and creditor. An accountant has a particular lien over documents belonging to his client in respect of which the accountant has performed work for which he has not been paid the fee due.

However, in the absence of a special contractual provision, accountants do not have a right of general lien in law and members are advised that it would not be worthwhile to assert such a right against a client unless they are expressly given that right by their contract with the client. Members should, however, take legal advice before seeking to exercise a lien.