When a professional negligence claim lands three or four years after the work was done, memory has faded and the paper trail is often the only reliable witness left. The contemporaneous file note — a record made at or near the time of the event it describes — is the single most valuable asset a professional can hand to a defending PI insurer. This entry sets out what a defensible file note looks like, how long to keep it, and how insurers use file notes when defending a claim.
The evidential value of a contemporaneous record was underlined in Jones v Environcom Ltd [2010] EWHC 759 (Comm), where the court considered the adequacy of a broker's advice on disclosure. The judgment illustrated how the quality of file notes shapes the court's view of what was said, warned about, and understood at the time. A note written on the day carries evidential weight that reconstructed recollections rarely match. Judges expect professionals to record material advice; the absence of a note is often treated as an inference that the advice was not given.
A defensible file note is specific rather than exhaustive. Capture the date and time of the interaction, who was present, the client's instructions as received, the advice given and the reasoning behind it, the options considered, any warnings issued about risk or limits of the advice, and any documents referred to. Where a client instructs a course of action the professional would not recommend, the note should record the recommendation, the warning, and the client's decision to proceed regardless.
The SRA Code of Conduct 2019 requires solicitors to record material communications; the ICAEW Code of Ethics similarly requires members to document professional judgements. Both regulators expect the file to speak for itself.
Digital notes recorded through a practice management system that timestamps entries and locks them against later edit are generally more defensible than free-form Word documents on a shared drive. The audit log matters as much as the content: a system that shows the note was created on Tuesday afternoon and not touched again supports contemporaneity. Paper notes remain acceptable where dated and signed; scan and file digitally at the first opportunity.
Not every file note is disclosable. Notes made for the dominant purpose of giving or receiving legal advice attract legal advice privilege; notes made in anticipation of litigation may attract litigation privilege. A professional recording their own reasoning on a live client matter is generally producing a business record and may be disclosable in later proceedings. If a note is made specifically to seek advice about a developing dispute, mark it clearly and keep it separate from the working file. Assume anything on the client file is capable of disclosure and write accordingly.
Regulator minima vary. Solicitors typically retain files for six years after the matter closes, longer for wills, trusts and property. Accountants retain records under statutory and ICAEW guidance. But the PI defence window is longer than the regulatory minimum. Latent damage claims can arrive up to fifteen years after the negligent act under the Limitation Act 1980. For high-risk work — tax advice, complex transactions, long-tail advisory engagements — retention until the fifteen-year longstop has passed is the practical benchmark PI insurers look for.
Most PI policies contain a condition requiring the insured to maintain reasonable records of the work carried out. Breach can allow an insurer to apply remedies under the Insurance Act 2015 where the breach was material to the loss. Reasonable record-keeping is not a heroic standard — it is the ordinary practice of the profession — but the burden of demonstrating it falls on the insured when a claim arrives.
When a claim lands, the defending insurer's panel solicitor works through the file looking for the point at which the negligent-or-not question can be answered. A contemporaneous note recording the advice, the warnings issued and the client's chosen course often settles that question in the insured's favour without reaching trial. Files with strong contemporaneous records defend at a fraction of the cost of files where the professional is reconstructing events from memory years later.
Worked example. A solicitor advises a corporate client on a complex tax scheme in 2023. On the day of the advice, the solicitor files an 800-word contemporaneous note setting out the client's instructions, three options considered, the reasoning for preferring the recommended structure, the tax risks flagged including HMRC challenge exposure, and the client's confirmed instruction to proceed. In 2027 the scheme is challenged by HMRC and the client brings a professional negligence claim alleging the advice was unsuitable. The 2023 file note is decisive: it demonstrates the advice was reasoned, the risks were identified and communicated, and the client made an informed decision. The PI insurer defends the claim on that basis and the claim is discontinued.
Apex Insurance Brokers Limited is authorised and regulated by the Financial Conduct Authority. Firm reference number 724952. This entry is general information, not advice on any particular policy.