WhatsApp: Colleagues unhappy with solicitor’s comments
A law firm’s file includes WhatApp messages and other forms of digital communication where it then seeks to charge for them, a costs judge has ruled.
Judge Nagalingam in the Senior Courts Costs Office debarred leading firm DWF [1] from participating in a detailed assessment after he held that the failure to disclose WhatsApp messages meant it had not complied with an unless order to disclose a digital copy of its file.
He said the file for these purposes was made up of “any matters upon which a charge has been raised” and he had concluded that the ledger “demonstrates charges being raised for the sending of WhatsApp messages”.
The court never directed certain forms of communication be excluded from the order for disclosure, he stressed.
Judge Nagalingam said the order was clear: “If the claimants were billed for the work in the amended invoices (thereafter reflected in the breakdown of costs) then billed matters connected to that work constitute the defendant’s files…
“If the claimants were charged for a WhatsApp message, for example, then that forms part of the file.”
This would apply to other forms of communication, even if fee-earners were using personal devices in doing so.
The judge noted that the Solicitors Regulation Authority, in a July 2024 thematic review of asylum legal services, acknowledged the role of WhatsApp as a convenient way of meeting clients’ needs, but said firms needed a clear usage policy [2].
The regulator said that, as most case management systems did not automatically save messages sent via instant messaging apps like WhatsApp, fee-earners had to be “proactive in remembering to add those conversations to the client file”.
Judge Nagalingam agreed with this, adding that, in the case of WhatsApp at least, “doing so is neither onerous or technically challenging. There is a simple ‘export chat’ feature in which communications isolated to a single chain of communication can be saved to an external file”.
DWF’s belief that WhatsApp messages did not form part of the file did not mean they fell outside of the disclosure requirement.
The firm had submitted no law firm could possibly consider WhatsApp messages to be part of the file “if in practical terms they have no control over them” and “no ability to supervise”.
The judge considered this “an explicit recognition by the defendant of their failure to direct staff as to the use of WhatsApp in their professional dealings with clients, and the failure to have a policy in place”.
Judge Nagalingam said another part of the dispute between the parties was the failure to disclose at least 2,000 emails that had been charged for.
DWF said it had undertaken a “root and branch disclosure exercise” and “are as sure as we can possibly be that there are no emails which should have been provided but have been withheld”.
This was “troubling”, said the judge, and “one cannot help but question (as indeed the claimant has) if the missing e-mails are in fact routine WhatsApp messages which have been recorded as fee earning time, but never saved to the file due to a lack of supervision, oversight or a settled policy in this regard”.
As a result, Judge Nagalingam held that DWF was in breach of the unless order and the sanction would apply, although he amended it under the slip rule to make clear DWF was not debarred from participating in a preliminary issues hearing in February.