In a recent Solicitors Act detailed assessment dispute, the Senior Courts Costs Office (Costs Judge Nagalingam) delivered an important ruling on the scope of a solicitor’s “file” for disclosure when an invoice includes charges for work communicated via instant messaging. The decision serves as a timely reminder that digital communications matter – and that internal practice policies do not override the court’s disclosure order.
The core facts
In MacInnes & Anor v DWF Law LLP [2025] EWHC 3252 (SCCO), the claimants challenged their former solicitors’ bills in detailed assessment proceedings against, DWF Law LLP, arising from work carried out in an arbitration. A court order directed the defendant to provide a complete digital copy of its files relating to the instructions described in the amended invoices.
The defendant failed to include communications from WhatsApp – on the basis that such messages weren’t stored in its case management system and were not viewed internally as part of the formal file.
The claimants applied for a declaration that DWF was in breach of the disclosure/disclosure order and that the sanction of debarment should be triggered.
Judgment: What the court decided
- Disclosure is driven by the invoice, not internal practice
The court held that the critical test is whether a communication or document gave rise to a charge on the relevant invoices. If it did, then it falls within the scope of the solicitor’s “file” for disclosure purposes – regardless of the medium used (e.g., WhatsApp, email or paper). This is not a blanket rule that all WhatsApp messages are part of the file, but where a charge is raised in respect of work conducted via instant messaging, the related communication must be disclosed.
- Internal policies don’t trump court orders
DWF’s internal belief that WhatsApp communications were not part of its formal file did not justify non-disclosure. The judge stressed that the obligation to disclose extends to any communication linked to billed work, even where a firm lacks policies or systems to capture such materials. - Consequences of non-compliance
The court concluded that DWF’s failure to comply with the disclosure order meant it was debarred from participating in the detailed assessment hearing on the substantive issues (subject to limited exceptions for the preliminary issues hearing). - Discrepancy in disclosure raised concerns
The court noted a significant discrepancy between the number of charged-for email communications and the number actually disclosed, which, in the absence of clarifying witness evidence, supported the claimants’ position that disclosure was incomplete.
What this decision does not decide
This judgment should not be read as authority for the proposition that all WhatsApp or instant messaging communications will automatically form part of a solicitor’s “file” for disclosure purposes.
The court did not suggest that informal communications, of themselves, must always be retained or disclosed. Rather, the decision is firmly anchored to the charging of costs: where work carried out via instant messaging gives rise to a charge on an invoice, the underlying communication is capable of falling within the scope of disclosure.
The ruling is also fact-specific and concerned with compliance with a particular disclosure order in the context of a Solicitors Act assessment, rather than laying down any universal rule of professional record-keeping.
Key practical messages
- Disclosure scope is objective
When a solicitor is ordered to provide “complete files” in digital form, the relevant metric is not the firm’s internal recordkeeping but whether the communication relates to work for which charges have been raised. If it does, it must be included. - Instant messaging isn’t off the radar
This judgment reinforces that courts will treat WhatsApp and similar messaging platforms like any other form of communication – in terms of disclosure obligations -if the substance of the communications is reflected in billed charges. - Adequate internal systems matter
Firms without robust systems to capture and archive non-traditional communications risk sanctions in costs proceedings. While the decision doesn’t universally mandate that all WhatsApp messages are always part of the file, it underscores the risk of failing to capture billed work. - Sanctions remain real
Failing to comply with detailed disclosure orders can lead to the draconian consequence of debarment from the substantive assessment, emphasising that compliance is not optional.
Implications for Costs Practitioners and Litigators
- For receiving parties:careful documentation and clear linkage between fees claimed and source materials is essential – including ensuring that communications captured outside a firm’s case management system are archived appropriately if charged
- For paying parties:this decision provides a useful foundation to seek broader disclosure in detailed assessment proceedings – challenging narrow definitions of file scope based on internal practice
- Across the profession:in an era where work increasingly takes place via mobile devices and messaging apps, firms should revisit their digital governance, retention policies and professional conduct guidelines to avoid inadvertent exposure to sanctions in costs assessments.