WhatsApp Disclosure In Solicitors File

Where a solicitor has raised a charge for work conducted via WhatsApp or other instant messaging platforms, those communications form part of the file for disclosure purposes in Solicitors Act assessment proceedings, regardless of whether they were saved to the firm’s case management system.

In a Solicitors Act assessment, the scope of a solicitor’s ‘file’ for the purposes of an order for disclosure or inspection is defined by the work for which the client has been charged, not by the solicitor’s internal record-keeping practices or the medium of communication used. Any communication, irrespective of platform, that generated a charge on the relevant invoice forms part of the file. [101-102, 180-181, 194-195]
A solicitor’s failure to implement a policy governing the use of instant messaging applications for client communications, and the consequent failure to save such messages to the formal case record, does not excuse non-disclosure of those messages if they relate to chargeable work. The obligation to disclose charged-for documents is not negated by a lack of internal systems or supervision. [130, 137, 172, 176]
Where an order for disclosure of a solicitor’s file is made, the solicitor cannot unilaterally define its contents by excluding categories of documents they subjectively believe do not form part of the file. The objective criterion is the connection to the billed instructions. [96-97, 129, 177-178]
In considering compliance with a disclosure order, the court may draw adverse inferences from a significant and unexplained discrepancy between the volume of communications claimed for in a costs breakdown and the volume actually disclosed, particularly where no witness evidence is provided by the author of the breakdown to clarify the position. [142, 162-163, 169-170]
The sanction for non-compliance with an unless order in detailed assessment proceedings can be the debarment of the defaulting party from participating in the substantive hearing. The court retains the power to correct the terms of such an order under the slip rule (CPR 40.12) to accurately reflect the judge’s oral decision. [206-208]