Solicitor Firm Debarred From Detailed Assessment For Failing To Disclose WhatsApp Communications

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.

WhatsApp disclosure solicitors file obligations Solicitors Act assessment proceedings

MACINNES & ANOR v DWF LAW LLP [2025] EWHC 3252 (SCCO)

In MacInnes & Anor v DWF Law LLP, Costs Judge Nagalingam granted an application for a declaration that the defendant solicitor firm was in breach of an unless order concerning disclosure in Solicitors Act 1974 assessment proceedings. The defendant had been ordered to provide “a complete digital copy” of its files relating to the billed instructions but failed to disclose WhatsApp communications for which the claimants had been charged. The judge held that the defining criterion for disclosure was whether a communication had generated a charge on the invoices, not the medium used or the firm’s internal filing policy. This was not a decision that WhatsApp messages form part of a solicitor’s file as a matter of course; rather, if a charge is raised, the related communication forms part of the file. The defendant was found in breach and debarred from the main detailed assessment, though permitted to participate in the preliminary issues hearing following a slip rule correction. Costs were reserved.
Link to full judgment

In a Solicitors Act assessment, the court is concerned with what the client has or has not been charged for. The points of dispute will focus on which of the charges are agreed and which are challenged. Thereafter, the court on an assessment is focussed on the challenged items in a breakdown which have led to a charge being raised. In that sense, the file is anything that has led to charges being raised against the client and could therefore extend well beyond just one instant messaging platform (in addition to a firm's traditional recorded means of communication).

Citations

Edwards & Ors v Slater and Gordon UK Ltd; Raubenheimer v Slater and Gordon UK Ltd [2022] EWHC 1091 (QB) The High Court held that disclosure orders under CPR 31 can be made in Solicitors Act proceedings, although such orders should be unusual and only granted where necessary to achieve justice in accordance with the overriding objective.  
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Key Points

  • 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]

"The requirement to provide "a complete digital copy" means exactly as it sounds, i.e. a digital "copy" of a complete file. That did not, and never did, mean disclosure of the Defendant's digital case management system only. It meant "a complete digital copy of the Defendant's files in connection with the instructions described upon the Amended Invoices", in digital format. For example, that would include converting documents that had only ever existed in paper form to a digital version – e.g. in PDF format." "

Key Findings In The Case

  • The Defendant failed to comply with paragraph 4.4 of the order dated 4 September 2024 by not disclosing WhatsApp communications that were used in chargeable work, thereby triggering the sanction in the unless order dated 22 April 2025 and resulting in the Defendant being debarred from participating in the detailed assessment hearing (save for limited exceptions) [101–102, 195].
  • The Defendant accepted that WhatsApp messages were used by its staff to communicate with the Claimants, but failed to disclose those messages due to a lack of policy or system to capture them, despite having charged the Claimants for related work, rendering their disclosure position deficient [130, 137, 176].
  • The Defendant’s disclosure was incomplete, as over 2,000 emails apparently charged for in the breakdown were not disclosed, and no adequate explanation was provided; notably, the author of the breakdown was not called to give evidence to clarify this discrepancy [142, 162–163, 169–170].
  • The Defendant’s internal belief or practice that certain documents (e.g. WhatsApp messages) are not part of the firm’s ‘file’ could not override the terms of the court’s disclosure order, which required a complete digital copy of all materials connected to the billed work, regardless of form or medium [96–97, 129, 177–178].
  • The Defendant’s default under the unless order led to the imposition of the originally intended sanction, as clarified pursuant to CPR 40.12 (the slip rule), which disallowed their participation in the substantive detailed assessment hearing but permitted attendance at the preliminary issues hearing scheduled for February 2026 [206–208].

“For the avoidance of doubt, it is less a question of what makes up a solicitors’ files (i.e. letters, attendance notes, file notes, e-mails etc) and what makes up the things the Claimants were billed for. If the Claimants were charged for a WhatsApp message, for example, then that forms part of the file. To be absolutely clear, that is not a decision that WhatsApp messages form part of a solicitor’s file as a matter of course. It is a decision which reflects that regardless of the medium or platform used, if a charge is raised to the client then the related communication forms part of the file.”

The Senior Courts Costs Office’s decision in MacInnes & Anor v DWF Law LLP [2025] EWHC 3252 (SCCO) establishes that the scope of a disclosure order for a solicitor’s “complete files” is defined by what the client was charged for, not by the firm’s internal document management practices.

Background

This matter concerned an application within detailed assessment proceedings brought under the Solicitors Act 1974 by the clients, Mr and Mrs MacInnes, against their former solicitors, DWF Law LLP. The substantive assessment related to invoices rendered by DWF for its work on an arbitration for the claimants.

On 4 September 2024, following a directions hearing, an order was made which included, at paragraph 4.4, a requirement for the Defendant to provide the claimants with “a complete digital copy of the Defendant’s files in connection with the instructions described upon the Amended Invoices” [§89]. The purpose was to enable the claimants to consider the reasonableness of the costs and, more fundamentally, to identify what work had been charged. The Defendant failed to comply with this order by the stipulated deadline.

Consequently, on 22 April 2025, the court made an unless order. It provided that unless the Defendant complied with paragraph 4.4 of the September order by 4pm on 20 May 2025, it would be debarred from participating further in the detailed assessment hearing, save for the purpose of giving evidence on any preliminary issues [§1]. On 20 May 2025, the Defendant filed an assertion that it had fully complied [§2]. The claimants disagreed and applied for a declaration that the sanction in the unless order had been triggered. In response, the Defendant made a precautionary application for relief from sanctions, to be pursued only if the court found it to be in default [§4].

Costs Issues Before the Court

The primary issue for determination was whether the Defendant had complied with the disclosure obligations under the unless order of 22 April 2025, and therefore whether the sanction of debarment was engaged. This turned on the interpretation of what constituted the Defendant’s “complete files” for disclosure.

The specific points of contention were:

      • Whether communications sent via WhatsApp and similar instant messaging platforms, for which the claimants may have been charged, formed part of the solicitor’s “file” and thus fell within the scope of the disclosure order.
      • Relatedly, whether the Defendant’s failure to search for and disclose such messages amounted to a breach of the order.
      • The significant discrepancy between the number of emails claimed for in the costs breakdown (2,758 from one fee earner alone) and the number actually disclosed (1,335), raising a serious concern that the disclosure exercise may have been incomplete [§165-167].

The resolution of these issues would determine the procedural status of the Defendant in the ongoing detailed assessment and preliminary issues hearing.

The Parties’ Positions

The Claimants’ Position: The claimants, represented by Nicholas Bacon KC, argued there had been a clear breach. They submitted that the order for a “complete digital copy” of the files encompassed all forms of communication relating to the billed instructions, irrespective of the platform used. They pointed to entries in the Defendant’s ledger which they argued showed charges being raised for work involving WhatsApp messages [§71-74]. The claimants contended that the Defendant’s internal policy or lack thereof—choosing not to save WhatsApp messages to its case management system—did not absolve it from the obligation to disclose them if they related to charged work. The failure to even attempt to contact former fee earners to retrieve such messages demonstrated non-compliance [§6, §134-135]. The claimants also highlighted the discrepancy in email numbers as evidence that the disclosure exercise was incomplete [§34-35].

The Defendant’s Position: The Defendant, represented by Robin Dunne, maintained it had complied. It argued that the content of its “file” was a matter for it to define, and its position was that WhatsApp messages did not form part of it [§70]. The Defendant pointed to the practical difficulties of extracting such messages from personal or company mobile devices, especially from staff who had left the firm, and cited privacy concerns [§53-56]. It argued that any WhatsApp communications would have been short, administrative messages not containing substantive advice, and that the claimants likely already possessed messages sent to them directly [§127, §143-144]. The Defendant characterised the claimants’ application as an impermissible attempt to obtain specific disclosure through the “back door” of an unless order, bypassing the proper procedure under CPR Part 31 [§43, §63-64]. It relied on the witness evidence of its partner, Joel Heap, who stated the firm believed such messages were not part of the file and that a thorough search for disclosable documents had been conducted [§44, §126-127].

The Court’s Decision

Costs Judge Nagalingam granted the claimants’ application, declaring that the Defendant was in breach of the unless order [§195]. The sanction was therefore engaged, subject to a correction under the slip rule.

The court’s analysis focused on the proper interpretation of the disclosure order. The judge rejected the Defendant’s narrow definition of its “file” as being limited to documents saved on its Digital Case Management System (DMS). The order required a copy of the Defendant’s “complete files in connection with the instructions” [§89, §92-93]. The judge held that the defining criterion was not the medium of communication, but whether the client had been charged for the work in question. If a communication, whether by letter, email, WhatsApp, or any other platform, had generated a charge on the amended invoices, then it necessarily formed part of the file for disclosure purposes [§101].

Crucially, the judge made clear that this was not a decision that WhatsApp messages form part of a solicitor’s file as a matter of course. Rather, it was a decision which reflects that “regardless of the medium or platform used, if a charge is raised to the client then the related communication forms part of the file” [§102].

The judge concluded, on the available evidence, that the ledger demonstrated charges being raised for WhatsApp communications. Upon analysing the ledger, and distinguishing between time spent reviewing WhatsApp evidence in the underlying arbitration and time spent on WhatsApp communications with the client, the judge identified entries dated 03/08/2020, 09/11/2020, 16/11/2020, 01/02/2021, 10/11/2021 and 17/12/2022 that implied charges were raised for the latter [§159-160]. The absence of a witness statement from the author of the costs breakdown, who could have clarified this, counted against the Defendant [§162-163].

The court was unpersuaded by the Defendant’s reliance on privacy and practical difficulty arguments. It noted the Solicitors Regulation Authority’s (SRA) thematic review of asylum legal services dated 30 July 2024, which emphasised the need for firms to have policies on using messaging apps and to ensure relevant communications are saved to the client file [§110-116]. The Defendant’s lack of such a policy and its failure to even ask former staff for relevant messages undermined its position [§134, §176].

The judge also expressed serious concern over the discrepancy in email numbers, noting that one has to at least entertain the possibility that the missing emails are in fact routine digital messages sent via other means [§142, §169-170]. This further indicated the disclosure may have been incomplete.

In conclusion, the judge found the Defendant had failed to disclose all documents relating to matters for which the claimants were charged, and was therefore in breach of the unless order [§195]. The sanction of debarment was activated. However, applying the slip rule under CPR 40.12 [§196], the judge amended the sanction clause. The original order debarred participation “save for the purpose of giving evidence on any preliminary issues”. The judge corrected this to “save for the purpose of any preliminary issues hearing in which evidence might otherwise be heard”, accurately reflecting the ex tempore judgment [§206-207]. Consequently, the Defendant is debarred from the main detailed assessment but may participate in the listed preliminary issues hearing in February 2026 [§208].

The costs of the application were reserved, as elements of it remained part-heard [§197]. The parties were given directions to confirm whether they would pursue the remaining parts of the claimants’ application and the Defendant’s relief from sanctions application [§198-200].

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MACINNES & ANOR V DWF LAW LLP [2025] EWHC 3252 (SCCO) | COSTS JUDGE NAGALINGAM | UNLESS ORDER | PARAGRAPH 4.4 ORDER DATED 4 SEPTEMBER 2024 | SRA EXECUTIVE SUMMARY 30 JULY 2024 | DISCLOSURE OBLIGATIONS | COMPLETE DIGITAL COPY OF FILES | WHATSAPP COMMUNICATIONS | INSTANT MESSAGING DISCLOSURE | TEXT-BASED MESSAGING SERVICES | END-TO-END ENCRYPTION | DIGITAL CASE MANAGEMENT SYSTEM | FILE DEFINITION UNDER CPR | DOCUMENTS CHARGED TO CLIENT | CPR 46.10 | 47PD 13.12 | MISSING EMAILS | ROUTINE COMMUNICATIONS | OVERCHARGING CLAIMS | NON-COMPLIANCE WITH DISCLOSURE ORDER | RELIEF FROM SANCTIONS | DATA RETENTION POLICIES | DIGITAL FILES VERSUS COMPLETE FILES | PRIVACY ARGUMENTS IN COSTS | COSTS ASSESSMENT SANCTIONS | DISCLOSURE OF NON-TRADITIONAL COMMUNICATIONS | DEFENDANT’S FILE SCOPE | ENFORCEABILITY OF CFA | CLAIM FOR REPAYMENT | CLIENT RIGHT TO FILE IN PAID BILL CASES | SRA RECORDKEEPING EXPECTATIONS | PRACTICAL DIFFICULTIES OF WHATSAPP DISCLOSURE | SLIP RULE CPR 40.12 | DWF’S FAILURE TO SUPERVISE | SELF-DELETING MESSAGES | COSTS OF UNDISCLOSED COMMUNICATIONS | CLAIMANT’S APPLICATION FOR DECLARATION | CPR PART 31 IN SOCAs | EDWARDS V SLATER AND GORDON UK LTD [2022] EWHC 1091 (QB) | PRIVILEGED DOCUMENTS AND DISCLOSURE | RETAINER TERMINATION DISPUTE | DISCLOSURE DEEMED UNDERBILLING | FILE CONTENT DETERMINED BY CHARGES | CLIENT’S RIGHT TO INSPECT FILE | AMENDED INVOICES | COSTS SANCTION LANGUAGE CLARIFICATION | DISCLOSURE VERSUS INSPECTION IN SOCAs | BREAKDOWN AUTHOR ABSENCE | PARTICIPATION IN DETAILED ASSESSMENT DEBARRED