Whatsapp Messages Can Form Part Of A Solicitor’s File: The Defendant Firm Was, Therefore, In Breach Of A Peremptory Order

This case raises highly significant issues for all firms of solicitors. It relates specifically to whether messages sent by WhatsApp from private phones form part of a solicitor’s file. However the case extends to any type of electronic communication, some of which can be quite informal and conducted on private devices. All of these methods of communication can become part of a solicitor’s file and therefore subject to a duty to disclose.  The failure to appreciate this in the current case led to defendant solicitors being in breach of a peremptory order.

Judge: “On the basis that the consequence of the wording of paragraph 4.4 of the order dated 4 September 2024 is that the file is made up of any matters upon which a charge has been raised; and in circumstances where I have concluded the ledger demonstrates charges being raised for the sending of WhatsApp messages; and upon having serious concern that the amended invoices (and by extension, breakdown) include claims for instant message communications (such as WhatsApp and iMessage) but claimed as routine e-mails; and such messages not forming any part of the disclosure that has taken place; and on the basis the court never directed certain forms of communication be excluded from the order for disclosure, I find that the Defendant is in breach of the unless order dated 22 April 2025.“

Key Practice Points

There are highly significant issues here relating to a firm’s use of communicating with clients using alternative methods of electronic communication.  If a method is used and the client charged for it then the message becomes part of the “file” and may have to be disclosed on any solicitor and own client assessment.

The Facts

In an ongoing solicitor and own client assessment the judge made a peremptory order compelling the defendant solicitors give disclosure.  The claimants sought a declaration that the defendant had not complied and were therefore debarred from participating further in the litigation.  Initially the defendant’s case was that it had complied.  It then made a “precautionary application” for relief from sanctions.

The Issue: Were Whatsapp Messages Included In The Order?

The claimants’ case was that the defendant had failed to disclose any WhatsApp messages at all and were therefore in breach.   The defendant argued that WhatsApp messages did not form part of the file and it was not in breach of the order.

What Happened In A Nutshell

The judge found that WhatsApp messages could be part of a solicitor’s file in this context.  In the current case there was evidence that the claimants had been charged for work done by WhatsApp and these formed part of the “file”.  The defendant had not, therefore, complied with the order and were debarred.

Forbes commentary: Although this was in the context of a solicitor and own client costs assessment which does not generally apply to our  insurance work, it is a timely reminder that all electronic communications are potentially discloseable, and can form part of a solicitors file. Consequently, if for instance, in the context of an insurance client wishing to audit a file or query a bill, they called for the file, any whatsapp messages or other electronic communications would form part of that file and should be disclosed. Of course communications between solicitor and own client for the purpose of litigation are generally privileged and are not disclosable to the other side.