Instructing investigators and process servers

Under paragraphs O(1.2) and IB(4.3) of the SRA Code of Conduct 2011, solicitors must undertake due diligence in their selection of contractors to ensure their confidential information is protected.

As a diligent solicitor, you’ll want your client’s case to be watertight.

Imagine this.

You gather the evidence to prove your case or to refute the case against your client. Any documents to be served will be dealt with properly to close all those service loopholes that grind teeth and raise eyebrows.

You recognise that further evidence and information will strengthen your case, and that along the way there will be a need to engage a process server (a professional person that serves documents in accordance with the timescales and rules of particular proceedings). You decide to find an investigator and a process server via a quick online search.

We all do it – turning to Google to find professional services. Whether it’s a plumber, carpenter or electrician, they can always be found online. But just how many ‘professionals’ are really what they say they are? You are only ever a couple of clicks away from a rogue trader…

So, what does due diligence look like when hiring an investigator?

Often, we make a judgement on services provided by a person or company based on the look and feel of their website. Is it modern, up to date, grammatically correct, and do the links work? If a website appears trustworthy and tells us they offer what we need, that can seem good enough.

Let’s say you had a thorough look through their website and hired them.

Six months later

Things are starting to go wrong.

For a start, the investigator hasn’t notified the Information Commissioner’s Office (ICO) that he is processing personal data as a data controller. It turns out he also has no GDPR training and a data breach has occurred. The ICO has been in touch and is asking some tricky questions, and your client isn’t too pleased, either.

Things get worse. The evidence your investigator has acquired has been gathered unlawfully and is inadmissible. The police have left you a message, too.

Your investigator then tells you he has criminal convictions; this means his credibility as a witness is shattered. He later tells you he is no longer trading.

Nine months later

Your client’s case has been dismissed – the process server failed to serve the correct document on the correct person and in time. You discover at court that your process server has no professional training.

It’s a disastrous result. Surely the process server you engaged is answerable to someone? Unfortunately, you discover that this is an unregulated industry and the process server has no professional affiliation or accountability.

Hiring a reliable investigator

While investigators and process servers are unregulated, there are professional bodies for the sector. The Law Society’s partner, the Association of British Investigators (ABI), operates a self-regulation regime, allowing their members to be held accountable for their work.

Members of ABI are required to have:

• criminal record checks
• industry-recognised qualifications
• data protection registration with the ICO
• insurance cover.

In addition, ABI carries out checks into its members’ creditworthiness, reputation and competence, while also enforcing codes of conduct, disciplinary procedures and sanctions for breaches. ABI membership also paves the way for an agency to achieve British Standard certificate BS102000, for the provision of investigative services, an additional benchmark to demonstrate professionalism.

Do’s and don’ts

Our tips on how to instruct an investigator:

Do:

• ensure there is credible independent accountability to a professional body
• ask about their data protection training
• question their level of professional indemnity insurance, to make sure it meets the maximum exposure should anything go wrong
• insist any proposal is in writing, that it addresses the lawful basis to meet the task, and their methods are clear, compliant and meet your expectations.

Don’t:

• be taken in by fancy websites or logos
• simply google for an investigator.

ABI’s free directory helps you find a professional investigator in your area, who specialises in the areas you need.