Court rules billed WhatsApp messages form part of a firm’s file and must be disclosed in costs cases
A costs judge has ruled that WhatsApp messages form part of a law firm’s file where clients are charged for them, a decision that led to leading firm DWF being barred from taking part in a detailed assessment.
Judge Nagalingam, sitting in the Senior Courts Costs Office, found that DWF had failed to comply with an unless order requiring disclosure of a digital copy of its file. The failure arose from the firm not providing WhatsApp messages and other digital communications for which it had billed clients.
The judge said the meaning of a file for disclosure purposes was clear. It included any matters upon which a charge had been raised. He concluded that the firm’s ledger showed charges had been applied for sending WhatsApp messages and that those messages therefore formed part of the file.
Judge Nagalingam rejected the suggestion that certain forms of communication could be excluded from disclosure. He said the court had never directed that WhatsApp or similar messaging platforms fell outside the scope of the order.
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He explained that if work appeared in the amended invoices and breakdown of costs, then any billed matters connected to that work constituted the defendant’s file. This applied regardless of whether the communications were sent from firm systems or personal devices.
The judge referred to guidance from the Solicitors Regulation Authority, which acknowledged in a July 2024 thematic review that WhatsApp was widely used to meet client needs. However, the regulator stressed that firms must have clear policies in place and ensure that such communications are saved to the client file.
Judge Nagalingam agreed, noting that exporting WhatsApp messages was straightforward and not technically difficult. He said the availability of simple tools to save chat histories meant there was no practical barrier to compliance.
DWF argued that WhatsApp messages could not realistically be considered part of a file because firms lacked control and supervision over personal messaging platforms. The judge described this submission as an admission of inadequate oversight and the absence of a proper policy governing professional communications.
The dispute also involved the alleged failure to disclose at least two thousand emails for which fees had been charged. DWF said it had undertaken a comprehensive disclosure exercise and believed no relevant emails were missing.
The judge described this position as troubling. He said it raised the possibility that some billed emails were in fact WhatsApp messages that were never saved due to insufficient supervision or governance.
As a result, Judge Nagalingam held that DWF was in breach of the unless order. He confirmed the sanction barring the firm from participating in the detailed assessment, although he amended the order to allow DWF to take part in a preliminary issues hearing scheduled for February.