Bruce MacInnes & Anor v DWF Law LLP [2025] EWHC 3252 (SCCO)

[2025] EWHC 3252 (SCCO)Case No SC-2025-BTP-000111
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
Venue Thomas More Building, Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/12/2025
Before
COSTS JUDGE NAGALINGAM
Between
(1) Mr Bruce MacInnesClaimants(2) Mrs Susanna MacInnesClaimantDWF Law LLPDefendant
Nicholas Bacon KC (instructed by Kain Knight (North & Midlands) Ltd) for ClaimantsRobin Dunne (instructed by DWF Law LLP) for DefendantHearing Hearing dates: 10/11/2025
Approved JudgmentThis judgment was handed down remotely at 12.30pm on 10/12/2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................COSTS JUDGE NAGALINGAM

Costs Judge Nagalingam:

[1]This hearing arises in slightly unusual circumstances. It is the product of an application by the Claimants (paying party) for a declaration that the Defendant (receiving party) is sanctioned by paragraph 1 of an unless order dated 22 April 2025, which provided that:
“1. Unless the Defendant, by 4pm on 20 May 2025, do comply with paragraph 4.4 of the Order dated 04/09/2024, the Defendant shall be debarred from participating further in the detailed assessment hearing save for the purpose of giving evidence on any preliminary issues.”
[2]The Defendant’s stance is they have complied and the Defendant’s Mr Heap, on 20 May 2025, filed an “ASSERTION REQUIRED BY PARAGRAPH 2 OF THE ORDER OF COSTS JUDGE NAGALINGAM DATED 22 APRIL 2025” that “The Defendant, DWF Law LLP, has fully complied with paragraph 4.4 of the Order dated 4 September 2024”.[3]On the basis the Defendant did not consider themselves to be in default, no application for relief was made, initially at least.[4]The Claimants consider the Defendant to be in default, hence their application for a declaration to that effect. This has in turn prompted the Defendant to make a precautionary application for relief from sanctions, i.e. one that is only to be pursued if I conclude that the sanction at paragraph 1 of the order dated 22 April 2025 is effective.

Mr Bacon KC’s submissions

[5]Mr Bacon submits there is no question that the unless order dated 22 April 2025 has not been complied with, because of the failure to disclose calls or messages made via WhatsApp. He argues any such calls or messages must form part of the file, and therefore fall to be disclosed.[6]He observes that the Defendant accepts possession of WhatsApp communications and accepts the same have not been disclosed. In so far that the Claimants are willing to accept there may be difficulties in obtaining WhatsApp communications from staff who are no longer employed by the Defendant, Mr Bacon observes the Defendant has not even attempted to make contact with such staff.[7]Mr Bacon wished to highlight that this application comes against the backdrop of a “long-running saga” regarding disclosure, including the Defendant’s admitted breach of the order dated 4 September 2024 and the subsequent unless order dated 22 April 2025.[8]With reference to the transcript of the hearing dated 22 April 2025, Mr Bacon drew my attention to the comments of Mr Carpenter KC, who appeared for the Defendant at that hearing, where in acknowledging past failings, Mr Carpenter said:
“Well, judge, we accept of course that things have not happened here as they should have done. There have been failures on the part of my client to provide the file in full. We have put our hands up to that and we have worked very hard to ensure that we come before you today in the position to give you proper evidence that we have now complied with that order but the fact that there have been errors in the past, as we accept, does not, in my submission, open the door to anything which the claimants might turn up before you today and simply ask for.”
[9]Mr Bacon thereafter invited me to note that Mr Carpenter expressed concerns that the Claimants were seeking to morph their original application into a specific disclosure application.[10]This assertion is rejected by the Claimants, and Mr Bacon considers that clarification was provided by paragraphs 7 to 10 of my judgment dated 22 April 2025 where I set out that:
“7. The majority of what followed may well be contained on the DMS but the order, as I have stressed, was not for disclosure of the digital case management system only and it should have been clear to the defendant what they were agreeing to, i.e. not an order for digital files only but the defendant’s complete files in digital format. 8. The claimants cannot, and certainly at the outset could not, have known how many different forms of media the defendant utilised over the relevant period of conduct (which was spread across a period in which the working world undertook significant change) and in doing so messaging via Teams, messaging via WhatsApp, as just two examples of alternative forms of medium, extended the potential source of documents beyond the usual calls and emails to which the profession has generally been accustomed to for certainly the bulk of the past 20 years, or the period in time in which emails have superseded hard copy letters by post. 9. The defendant’s conduct, in my view, thus far reasonably gives the claimants no reassurance that the exercise required by paragraph 4.4 is at this stage complete without something more. The defendant has clearly, in my view, under resourced the exercise that was required and certainly at the time they engaged into the agreed terms of paragraph 4.4 of the September order had not, it seems, fully addressed their minds as to the task in hand to comply with that order. Perhaps they did not think that the payment would be made but, in fact, it was. 10. It has, in my observation, taken much in the way of encouragement and pressure from the claimants to get to where we are today in terms of disclosure through the claimants’ efforts in analysing the documents they had been provided with on a rather piecemeal basis and identifying where it was apparent that there must be further missing documents which were communicated to the defendant’s representatives and to the defendant’s representatives’ credit have on each occasion gone away and identified and disclosed further documents. It would not surprise me at all if there is more to come from the defendant, notwithstanding that as of today the defendant is confident that they have met their disclosure obligations.”
[11]Mr Bacon said that I was correct to foresee that further disclosure would likely be made, and my words in that regard turned out to be prophetic.[12]Mr Bacon avers that modern communications are not limited to letters, calls and e-mails, and that after the 22 April 2025 hearing it should have been clear to the Defendant that paragraph 4.4 of the order dated 4 September 2024 included “all” forms of communications.[13]Mr Bacon observed that the subsequent order dated 22 April 2025 was not appealed and so the applicable sanction stood unchallenged in the event of default.[14]In terms of conduct, Mr Bacon submits that at one stage the Defendant was asserting there were no WhatsApp communications to speak of, but that turned out to be untrue. He cites the penultimate paragraph of a letter dated 15 November 2024 from the Defendant to the Claimants’ legal representatives which stated:
“Further you, reference WhatsApp communications, however it is unclear as to what you are asking for or what issue is being raised. DWF did not use WhatsApp to operate Mr MacInnes’ client file. Advices to Mr MacInnes and communications with others on his behalf were recorded in email or by telephone. Further, DWF has not claimed any costs against Mr MacInnes for WhatsApp communications other than time considering those which were evidence in/relevant to the actual dispute. In the bill, which is the subject matter of this claim, there are eight entries that specifically refer to WhatsApp communications including from Rob Feldman, and Hogan Lovell and these form part of the 267k documents.”
[15]Mr Bacon then cited a letter from the Defendant to the Claimants’ legal representatives dated 20 May 2025 which provided further disclosure. He notes in particular the passage that reads:
“In particular, we do not accept that the MS Teams chats, (which for clarity are to be distinguished from teams meetings or calls), which have been provided out of an abundance of caution form part of “the file”
. They were not charged for and would have been the subject of face-to-face conversations but for remote working, which would not have been recorded.”[16]Mr Bacon thus observed the Defendant’s disclosure of non-traditional communications, i.e. messages from the chat function in MS Teams, notwithstanding the Defendant’s rejection that such messages were caught by the disclosure order.[17]On 5 June 2025, the Claimants’ legal representatives wrote to the Defendant to query why, despite the discussion between bar and bench on 22 April 2025, there had been no disclosure of WhatsApp communications, only selective disclosure of MS Teams messages, and the absence of disclosure of documents regarding the CFA.[18]Mr Bacon highlighted that the CFA was a major area of dispute in this matter, with the court being tasked with considering something of a 'see-saw’ argument as between hourly rates and a success fee.[19]Mr Bacon reiterated there was no dispute that WhatsApp communications had occurred, nor was there any suggestion that those communications no longer exist.[20]Thereafter citing the response to the Claimants’ queries dated 5 June 2025, Mr Bacon advised the Defendant had sent a holding response only, on 12 June 2025, advising that “The costs fee earner with conduct of this matter is currently unexpectedly out of the office until 16th June and we will there respond to your email next week.”[21]On 24 June 2025, the Claimants informed the court that no response had been received and on the same date, having been invited to confirm the unless sanction had become live, the parties received an e-mail from my clerk which stated:
“Costs Judge Nagalingam directs that the Defendant in this case is now debarred from participating further in the detailed assessment hearing save for the purpose of giving evidence on any preliminary issues, as a consequence of their failure to comply with paragraph 1 of the order dated 22 April 2025.”
[22]Mr Bacon submits this prompted the Defendant’s letter to the SCCO dated 26 June 2025 which, in effect, asked the court to withdraw the direction referred to above, and suggested that the Claimants needed to make an application for a declaration that the Defendant was in breach. He also drew my attention to a letter to the Claimants of the same date “to make a formal application for a determination” that the unless order had been breached.[23]That is the application now before me, and Mr Bacon submits it has only been required because the Defendant failed to comprehend they are in breach.[24]Mr Bacon submits that the transcript of the hearing dated 22 April 2025 and subsequent judgment makes it clear that the court had “put WhatsApp communications on the Defendant’s radar for disclosure” and that it was “nonsense” to say DWF cannot disclose WhatsApp communications where they were used to communicate with the Claimants during the course of the funded period.[25]Citing an SRA review (Executive Summary dated 30 July 2024: A thematic review of asylum legal services review), which is referenced in greater detail in my decision below, Mr Bacon concurs with SRA conclusions that WhatsApp messages sent to clients in the course of an engagement should and do form part of the file. He observed in particular the SRA’s conclusion that solicitors ought to be “pro-active in remembering to add those conversations to the client file”.[26]Mr Bacon then drew my attention to the 2nd witness statement of Joel David Heap, Partner at DWF Law LLP, dated 29 October 2025, where are at paragraph 41 he said:
“41. I believe that WhatsApp messages do not form part of the “file”
. Such messages are not saved and recorded as part of the file by my firm.”[27]Mr Bacon submits this merely demonstrates a choice by DWF to not save certain types of communications to their system. Paragraph 41 of Mr Heap’s 2nd witness statement sets out:
“42. I have spoken to a number of colleagues, including DWF’s General Counsel, about whether WhatsApp messages would be regarded as part of the client file. They have agreed with me that they are not. I am told that the reason for excluding WhatsApp messages from the file is largely due to the practical difficulties in extracting such messages to the DMS and privacy issues and access to mobile phones. WhatsApp messages are end to end encrypted, private to sender and recipient, and are kept on the personal phones of fee earners or those provided by DWF, where the fee earner chooses to download WhatsApp from the app store unilaterally. If correspondence was undertaken via WhatsApp and a fee earner left the firm, there would be no practical way of obtaining such messages (this is the position with Ben and Tom). It is not clear how a firm of solicitors could possibly consider such items as part of their file if in practical terms they have no control over them and no ability to disclose the messages from private devices or once they have left. There is also no ability to supervise.”
[28]In this regard, Mr Bacon submits there are no “practical difficulties” in saving communications and that all Mr Heap is demonstrating is that DWF had no mechanism in place to save WhatsApp communications to their system, even where that platform had been use to communicate with a client.[29]Thereafter, citing paragraph 43 of Mr Heap’s 2nd witness statement, Mr Bacon submits this does not provide a complete answer to the question of compliance with the 4 September 2024 disclosure[30]Mr Bacon observed that the order dated 4 September 2024 contained no provision which specifically excluded the disclosure of communications based on their medium or length.[31]Mr Bacon reiterated that the Defendant does not deny the existence of WhatsApp communications, but rather that they have elected not to disclose the same. He submits that it is “absurd” to suggest a firm has no rights over messages which were sent in the course of a fee earner’s conduct of the claim.[32]Mr Bacon submits that such messages would not have been sent in a personal capacity but in the capacity of a fee earner on behalf of DWF as “the regulated entity in which the fee earner works”. He says this is why the SRA requires solicitors to put in place proper procedures and policies in relation to the use of WhatsApp messaging (referring to the SRA’s Executive Summary dated 30 July 2024).[33]Next Mr Bacon addressed the issue of missing e-mails. With reference to paragraphs 9-16 of Mr Heap’s 2nd witness statement, Mr Bacon observed that the Defendant had initially not searched the outlook folders of their fee earners on the assumption that any e-mail sent/received would be logged on the firm’s DMS case management system. Mr Heap’s 2nd statement proceeds to explain the additional search methods used and that around 3,000 additional documents were disclosed, but caveated with Mr Heap’s view that “many of the documents we disclosed on 20th May were not “new” documents or emails at all, but were duplicates of items already disclosed, but which the de-duplication process had flagged as being different because they were not a perfect match to the previously saved items”.[34]The point Mr Bacon wished to stress was that it had taken two orders of this court to compel production of all of the Defendant’s e-mails, but that concerns remain. Mr Bacon says those concerns centre around the fact that the Claimants have been billed for 2,758 e-mails yet only 1,335 e-mails have been disclosed.[35]Mr Bacon observed that “The Defendant charged the Claimants £99,288 for the 2,758 e-mails, so they must exist”. The Claimants would like to know how did DWF count to 2,758 e-mails.[36]Mr Bacon submits the Defendant should not be permitted to “escape scrutiny” through concessions.[37]In closing his submissions, Mr Bacon cited the amount of court time available today and confirmed that the second and third elements of the application, i.e. disclosure of e-mails with Mr Carpenter KC and a repayment argument, were being maintained but he would not be making his submissions on those points today for want of time.

Mr Dunne’s submissions

[38]As a starting point, Mr Dunne acknowledged the Defendant’s previous failings but submits there has been no new disclosure since 20 May 2025. He says the unless order has been complied with and no further disclosure is awaited or due.[39]Mr Dunne also took issue with being notified only today that the Claimants were not pursuing the ‘repayment’ and ‘Carpenter’ points (at this hearing), and submits that demonstrates the inappropriate conduct of the Claimants. He says it is not good enough for the Claimants to pursue those arguments as part of their application for a declaration, and then say there is not enough time to address those points today.[40]As to disclosure, Mr Dunne submits that whatever the Claimants are aiming to achieve, they have failed to follow proper procedure.[41]He says that DWF accept their approach to disclosure has been “sub-optimal” and they apologise for that. However, the central question now is what does the order ask for and has there been compliance. Mr Dunne says everything flows from paragraph 4.4 of the order dated 4 September 2024.[42]Mr Dunne observed that the Claimants’ argument is essentially that the Defendant has only disclosed part of their file, and in doing so the Defendant has got it wrong. The Defendant’s position is that they have complied with the requirements of both orders and that this matter is ready to proceed to detailed assessment.[43]Mr Dunne submits that in reality, the Claimants are now seeking specific disclosure (in relation to WhatsApp communications) and other items in which privilege is claimed. He submits that the correct procedure is a Part 31 disclosure application, but that cannot be done “by the back door”.[44]He cites the witness statements of Mr Heap, in his capacity as an officer of the court, that all files the Claimants are entitled to have been disclosed. Mr Dunne says that puts an end to the “informal process” (of disclosure) that he says often takes place in solicitor and client assessments. DWF have provided what they consider their files are.[45]As to MS Teams, Mr Dunne submits that the Defendant has obtained and disclosed what they have, and that one cannot disclose what one does not have.[46]As to undisclosed e-mails, Mr Dunne submits that Mr Heap’s witness evidence demonstrates that genuine efforts have been made to ensure nothing has been missed. Those efforts yielded further documents, which were disclosed to the Claimant and were all sent prior to expiry of the deadline set by the unless order dated 22 April 2025.[47]Mr Dunne reiterated that the Defendant cannot disclose documents they cannot find or do not have. He submits what’s really at stake here is the WhatsApp communications and that leads to a number of fundamental arguments.[48]Mr Dunne observed that nowhere in my judgment did I state that WhatsApp communications were automatically part of the disclosure process.[49]Citing pages 42 and 43 of the transcript of the hearing dated 22 April 2025, Mr Dunne avers that discussions between bar and bench that day made it clear there was no Part 31 application for specific disclosure before the court.[50]Thereafter Mr Dunne cited page 47 of the transcript, where I commented that “what we are not here to do today is to get into the finer detail of what is or is not part of the defendant’s file. That is for the defendant to decide”.[51]In this regard, i.e. in terms of an order for disclosure specifying what should and should not be disclosed, Mr Dunne submits that my order would have strayed into specific disclosure had I specified that WhatsApp communications were included.[52]Mr Dunne submits that I was very careful in my use of language, and it is not for the Claimants to determine what is or is not in the Defendant’s files.[53]As to WhatsApp as a medium, Mr Dunne observed the circumstances in which communications could be lost, for example following a change of phone or where messages are set to delete by operation of a self-timer function.[54]Thereafter, citing the 2nd witness statement of Mr Heap, at paragraph 42 (which is set out above), Mr Dunne wished to make it clear that DWF does not direct fee earners to upload WhatsApp messages to their digital management system (DMS).[55]Mr Dunne stressed that if a document was not saved to the DMS then it can’t be retrieved. WhatsApp messages were not saved to the DMS hence the Defendant cannot produce them.[56]Mr Dunne contrasted the alternative to disclosure, namely inspection, and submits there would have been no question of the Claimants being allowed to look at the personal phones of DWF staff.[57]Mr Dunne invited me to reflect on the fact that a portion of the conduct period included various national lockdowns brought about by the Covid-19 pandemic, and the fact that the profession and nation as a whole were required to quickly adapt and find new ways of working.[58]In this regard, Mr Dunne also cited the SRA executive summary dated 30 July 2024 and in particular, the distinction drawn between providing legal advice via WhatsApp (i.e. fee earning for which charges were being raised), and using WhatsApp in a purely administrative capacity for ease (but not charged for).[59]Turning to the use of CPR Part 31, Mr Dunne relies on Edwards & Ors v Slater and Gordon UK Ltd; Raubenheimer v Slater and Gordon UK Ltd [2022] EWHC 1091 (QB) in which the High Court considered the question of under what circumstances CPR 31 disclosure could be applied in principle to Part 8 costs proceedings.[60]In Edwards, the issue of disclosure of an audio recording of the retainer sign-up process was considered at first instance, with the judge ruling that he had jurisdiction and power under CPR 31 to order standard disclosure and/or under his general case management powers could order such disclosure because the proceedings involved claims.[61]At paragraph 129 of the judgment, Ritchie J recognised “that it is in the interests of the parties to a Part 8 claim and the interests of the courts and of justice, that the judges dealing with such claims can make whatever case management decisions they should need to make so as fairly to elicit the issues and to permit the parties to prove their claims and to achieve justice in accordance with the overriding objective”.[62]Mr Dunne however invited focus on Ritchie J’s conclusion that “Disclosure should not be the normal order in SOCAs because it is not usually needed and this judgement should not be taken as a licence to apply in all Part 8 claims.”[63]Mr Dunne observed that paragraph 130 of the judgment went on to confirm that CPR 31 orders can be made in Solicitors Act assessment proceedings. However, Mr Dunne submits that it would be an “unusual order” to disclose WhatsApp communications, even if under Part 31.[64]Mr Dunne submits that rather than utilise the Part 31 procedure, the Claimants are seeking to bypass it to get what they want. He submits that at no time has the court set out what the Defendant’s file is, or isn’t, and it is not for the Claimants to tell the Defendant what should be included or excluded from their file.[65]Mr Dunne further asserts that there is no authority or rule that supports the Claimants’ argument for disclosure beyond what they have already received.[66]Mr Dunne then sought to focus my attention on obiter comments I had made, prior to making the unless order dated 22 April 2025, that it was a matter for the Defendant to determine what their file is or isn’t.[67]Mr Dunne referenced page 45 onwards of the transcript of the 22 April 2025 hearing to remind me that the advocates had carriage of the drafting of the unless order subsequently produced, but that prior to the advocates being dismissed a discussion between bar and bench had taken place as to what the order should be.[68]In particular, Mr Dunne reflected on the submission of Mr Carpenter KC (page 46 of the transcript):
“Judge, I am grateful. I mean the difficulty we have, and I do have to say this, is that there is a dispute between the parties as to what exactly is required to comply with paragraph 4.4. That is why the claimants have come up with their shopping list, as it were, of things that they want and whether or not they might get those on a specific disclosure application, there is a quite separate question of whether they are caught by paragraph 4.4. To take one example, WhatsApp messages and you have not heard submissions and, in my respectful submission, you are not in a position to give a ruling on whether WhatsApp messages are providable under paragraph 4.4 but that clearly is an issue between the parties and it would be a matter of very great concern to my client if effectively they had to take an absolutely maximal view of what could conceivably fall within that even if it went far too far for fear of the unless sanction then biting if they did not.”
[69]Thereafter, Mr Dunne cited my response (page 47 of the transcript):
“Well, if it comes to that, Mr Carpenter, those instructing you may need to make an application for relief but what we are not here to do today is to get into the finer detail of what is or is not part of the defendant’s file. That is for the defendant to decide. The order at paragraph 4.4 is a digital copy of the defendant’s complete – the defendant’s complete files in connection with the instructions described upon the amended invoices. Now, it strikes me that if one were to welcome any judicial guidance on this, if I look at the proposed paragraph 1[of the draft unless order attached to the application dated 18/11/2024], certainly communications regarding the creation of the CFA, one would ordinarily expect those to form part of the disclosure. I am not making orders on this, I am just making observations. As to WhatsApp messages, it is quite common now that because it is quicker than writing an email many firms will now use WhatsApp or equivalent messenger services to communicate on a particular subject. It is for the defendant to take a view as to whether or not those messages form part of the file or not thereafter and, indeed, I think that is probably why the [proposed] order said and any other electronic communication irrespective of platform. If it is discussing the matters upon which the defendant was instructed, ordinarily in my view it would form part of the disclosure, if not inspection.”
[70]Mr Dunne concluded that regardless of what arguments the Claimants may be raising, as a matter of fact the Defendant’s position is that there are no WhatsApp communications on the Defendant’s file and therefore such messages cannot form part of the disclosure that has been ordered.

Mr Bacon KC’s response

[71]Mr Bacon, with reference to paragraph 13.7 of his skeleton argument, says “It is not disputed that WhatsApp was used by the Defendant” and that “The evidence is overwhelming on this.” Paragraph 13.7 then sets out examples of where the Claimants submit the ledger or breakdown show charges being raised for the sending of WhatsApp messages.[72]Mr Bacon also cited a letter from the Claimant’s legal representatives to the Defendant, dated 5 June 2025, in which the following query was posed: “This raises important questions – if a direct line can be drawn through the time recording, into the inter-partes costs sought, to the bill, and then to the Breakdown (which is the same value as the bill), and the time recording contains WhatsApp messages – are the routine communications in the Breakdown that are labelled as “emails”, strictly emails? Are WhatsApp messages contained in document time without specifically referring to them?”.[73]Mr Bacon submits that this letter signposts a very important question of what words the author of the breakdown used when comparing like for like dates with the ledger.[74]Mr Bacon further submits that the court and Claimants cannot be confident that the mere absence of a reference to “WhatsApp” equates to no comparative time appearing in the ledger.[75]Mr Bacon says it is a simple question of what does the order say, and has it been complied with. He observes that the Defendant says there has been compliance, and that it is for them to self-mark their compliance with the order. Mr Bacon submits that the court should not be satisfied with that response.[76]Mr Bacon also addressed the question of what does “copy of the Defendant’s files” mean. He avers it must mean that all communications sent, regardless of means/medium, form part of the file.[77]Mr Bacon thereafter submits that if he is right about that, then the Defendant cannot have complied with the disclosure order because they explicitly accept WhatsApp communications were sent to the Claimant but have elected to exclude them from disclosure for the variety of reasons given (as per the witness evidence of Mr Heap and the skeleton argument of Mr Dunne).[78]Mr Bacon also submits the concern that WhatsApp messages may contain prejudicial material damaging to the Defendant’s case is of no consequence to the Claimants. The Claimants’ position is clear - if they have been charged for something then it should form part of the disclosure ordered.[79]Mr Bacon wished to stress this is not, and has never been, an application under Part 31, nor are the Claimants seeking to reframe their arguments to convert their application for a declaration into a Part 31 specific disclosure application.[80]Citing the SRA executive summary dated 30 July 2024, Mr Bacon considers that no part of that document harms the Claimants’ position because the SRA at least implicitly assumes time should be recorded and captured where work done is via WhatsApp.[81]Finally, and foreshadowing the potential pursuit of an application for relief, Mr Bacon expressed the view that the Defendant has committed a breach, and that the breach is serious.

Mr Dunne’s response

[82]Mr Dunne reiterated the comments I had made during the hearing on 22 April 2025, especially with regard to comments that it was for the Defendant to take a view as to what constituted their file.[83]Thereafter Mr Dunne (in a manner not inconsistent with those instructing him and others who have previously made oral submissions on behalf of the Defendant in this matter) misquoted paragraph 4.4 of the order dated 4 September 2024 when he referenced “digital files”, whereas the order refers to “a complete digital copy of the Defendant’s files..”[84]The distinction is important and discussed in my decision below.[85]Mr Dunne concluded by alluding that the Claimants’ true intentions in seeking disclosure of WhatsApp communications was in fact nothing to do with the time/costs detailed assessment that will eventually follow, but rather because it may produce information which assists the Claimants in their preliminary issue point about retainer enforceability. Analysis

Inspection / disclosure in Solicitors Act proceedings

[86]It is widely accepted that CPR 46.10 does not automatically impose an inspection or disclosure stage in Solicitors Act proceedings. However, nothing in the rules prevents the court exercising its wide discretion to order inspection or disclosure. Further, where a client has paid the Solicitors’ bill already they have a right to the file.[87]The fact is that the order dated 4 September 2024 was made. That order has not been varied, set aside or appealed. The order stands to be complied with.[88]The Defendant accepts non-compliance in the first instance, leading to the unless order dated 22 April 2025. The Defendant maintains that the unless order, and by extension the requirements of the order dated 4 September 2024, have now been complied with, hence no application for relief was initially made.

The order for disclosure

[89]On 4 September 2024 the parties appeared before me at a directions hearing. Paragraph 4 of that order created various contingent clauses and following compliance with those clauses, paragraph 4.4 became operative. That required:
“By 4.30pm on 9/10/2024 the Defendant shall provide the Claimants with a complete digital copy of the Defendant’s files in connection with the instructions described upon the Amended Invoices, so as to enable the Claimants to consider the reasonableness of the costs which are the subject of this assessment and to serve Points of Dispute. The files shall be arranged in chronological order and adopting the structure described at 47PD 13.12.”
[90]There has never been an application to vary, set aside or appeal that order.[91]I observe that 47PD 13.12 is not prescriptive and as such does not exclude documents based on their source.[92]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.[93]What constitutes the Defendant’s files is qualified by the order. It is the “Defendant’s files in connection with the instructions described upon the Amended Invoices”.[94]In my view, that ought to have been clear to the Defendant. 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.[95]I then turn to the transcript of the hearing on 22 April 2025, application for an unless order. Much has been made of the discussion between bar and bench (at page 47 of the transcript).[96]I acknowledge what I said to Mr Carpenter KC at the time was that “what we are not here to do today is to get into the finer detail of what is or is not part of the defendant’s file. That is for the defendant to decide.”[97]However, I went on to say “The order at paragraph 4.4 is a digital copy of the defendant’s complete – the defendant’s complete files, in connection with the instructions described upon the amended invoices”. It ought to have been clear to the Defendant that if they charged for it, then it forms part of the file.[98]Thereafter, I observed that “As to WhatsApp messages, it is quite common now that because it is quicker than writing an email many firms will now use WhatsApp or equivalent messenger services to communicate on a particular subject. It is for the defendant to take a view as to whether or not those messages form part of the file or not..”[99]I also observed that “If it is discussing the matters upon which the defendant was instructed, ordinarily in my view it would form part of the disclosure, if not inspection.”[100]What ought to be clear from that exchange is that at no time did I invite the Defendant to disregard what paragraph 4.4 of the order dated 4 September 2024 actually required.[101]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.[102]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.[103]I further observe that at no point did the Defendant take me to the retainer in so far that it might assist in the question of whether the ‘file’ is somehow limited to only certain forms of communication.[104]The only definition I could locate defines the papers as “All files, records, documents and evidence relating to the Claim” (emphasis added). This definition clearly does not exclude certain forms of communication, platforms, software or hardware.[105]I also regard my comments around the time of the making of orders was very much in a vacuum of knowledge because even if I had specified WhatsApp messages be disclosed, it may have then transpired DWF staff also used SMS, iMessage, or other messenger platforms.

The Application

[106]An order for disclosure of the solicitor’s files was made as part of the directions in Solicitors Act proceedings. The Defendant accepts that the order was not complied with. An unless order followed. The Defendant considers they have complied with the unless order, hence the Defendant considers there is no sanction to apply for relief from.[107]The Claimants consider that the Defendant has not complied, and seek a declaration to that effect. The Claimants’ application is set out on three bases and seeks:
“(1) A Declaration that the Defendant is sanctioned by Paragraph 1 of the Order of 22/04/2025, (2) additional disclosure from the Defendant relevant to the Preliminary Issues Hearing, and (3) the return of an overpayment made by the First Claimant to the Defendant.”
[108]Elements (2) and (3) to the application, relating as they do to communications between the Defendant and Jamie Carpenter KC (2) and refunding an overpayment (3), were not pursued today due to a lack of time.[109]Whilst Mr Dunne was critical of this, I consider Mr Bacon was simply reflecting the reality of the amount of court time available and seeking to focus that time on the main element of the application, i.e. a declaration that the unless order has been breached and the sanction therefore bites. I am not critical of either party’s time management in that regard.

The SRA Executive summary dated 30 July 2024

[110]The SRA Executive summary dated 30 July 2024 was prepared as part of “A thematic review of asylum legal services” but helpfully includes a section headed “Firms’ use of WhatsApp”.[111]This section speaks generally of the use of WhatsApp in broader society, as a “fast and safe way for messages to be exchanged”. It also recognises the use of WhatsApp, in asylum cases at least, to “update clients about the progress of their case and to share administrative details”.[112]The section proceeds to set out what a firm should do if they are providing legal advice via WhatsApp, advising that “firms should make sure that the advice is properly supervised and that a record of that advice is on the client file. Our expectations are the same if legal advice is provided via any other text-based messaging service”.[113]Consistent with my own observations in the index matter, the SRA observed that:
“While using WhatsApp is a convenient way of meeting clients’ needs, we noted that firms had not fully considered its implications. For example, most firms lacked a clear written usage policy for fee earners about whether they should be using WhatsApp on their personal mobile phones to contact clients. This poses data protection risks and the potential for exploitation of vulnerable clients. We advised firms to mitigate this, and other risks, by establishing a clear usage policy for the use of WhatsApp by fee earners. This will make sure that communication follows professional standards and stays consistent and confidential. It is also important so that there is oversight of fee earner communication with clients.”
[114]The SRA also set out a non-exhaustive list of 11 areas a usage policy might cover. I have not been taken to or advised of any such usage policy in place at DWF at the time of the relevant billing period.[115]The SRA have recognised that:
“Most case management systems also do not automatically save messages sent via instant messaging apps like WhatsApp. This means fee earners must be proactive in remembering to add those conversations to the client file. There are clearly risks associated with this. For example, clients or fee earners might edit or delete messages before they are saved, or a fee earner might forget to save the conversation or lose the mobile phone they are using. If a matter does not accurately reflect all communication between a fee earner and a client, this can also adversely impact a supervisor's ability to oversee the matter.”
[116]The SRA review concludes by observing an example of good practice, in using a browser version of WhatsApp on a firm’s computer, backed up by a cloud service account and added to the client file as and when necessary. The SRA also warned of the impacts on fee earner wellbeing regarding “constant connectivity” versus keeping normal office hours.[117]Whilst an SRA executive summary is not binding upon me, the report clearly reflects that the use of WhatsApp and similar text-based instant messaging services is not alien to the legal profession.[118]I agree with the summary findings that where a firm (whether pursuant to a written policy or unilateral decision of an employed fee earner) elects to use WhatsApp in place of communication via a letter, call or e-mail, then that firm should have a means of recording that event and evidencing it.[119]Further, 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. Defendant’s witness evidence Evidence of Mr Heap

Defendant’s witness evidence

[120]Mr Heap’s first witness statement, dated 29 July 2025, is incredibly detailed and runs to some 252 paragraphs. That statement seeks to address, amongst other issues, fundamental areas of dispute regarding the retainer and costs estimates.[121]Whilst I am alive to the possibility that the parties’ respective cases with respect to some of the preliminary issues may be strengthened or weakened by the outcome of my decision as to disclosure, such factors are not determinative of that decision.[122]My primary concern is what the Defendant charged the Claimants for, and that the disclosure reflects those charges. I am therefore bound to consider the extent to which the Defendant’s witness evidence is informative in that regard.[123]Mr Heap’s 2nd witness statement focuses on whether the Defendant has complied with the unless order dated 22 April 2025. At paragraph 7 of that statement he confirms:
“7. When my firm was originally ordered to disclose our file, we did so by disclosing the documents that were in the DMS system (our case management system). We provided it in digital form not hard copy as per the September order. Those are the items that we would ordinarily consider constitute our file of papers. Regrettably, certain items (such as the trial bundle) were not originally provided but followed. DWF then ensured that significant steps were taken to try to make sure that every document that Mr. MacInnes was entitled to under the order of 6th September 2024 (in order to allow Mr. MacInnes to prepare his objections to the bill) was sent to him.”
[124]This demonstrates at least some understanding that the order dated 4 September 2024 (sealed on the 6th) was for the disclosure of the Defendant’s files in digital format, as opposed to disclosure of the Defendant’s digital file only. In this regard, the Defendant has accepted that one of the limitations of their “DMS” case management system is those occasions where relevant documents are not uploaded.[125]Indeed Mr Heap’s 2nd witness statement proceeds to describe “a root and branch review of the documents” so that the Defendant could “absolutely ensure that nothing had been kept back inadvertently outside of DMS.” Mr Heap’s 2nd witness statement then proceeds to set out all of the additional documents that were discovered and subsequently disclosed, such that he could express in confident terms that the unless order dated 22 April 2025 had been complied with.[126]At paragraph 14, Mr Heap states:
“14. Secondly, we gave serious reconsideration to the firm’s position in relation to WhatsApp messages and MS Teams messages and, although we concluded that MS Teams messages were not part of “the file”, we nevertheless conducted a root and branch search of MS Teams messages as far as we were able given the limitations of that platform. I address that further below.”
[127]The “further below” referred to by Mr Heap appears at paragraphs 41 to 45 of his 2nd witness statement as:
“41. I believe that WhatsApp messages do not form part of the “file”
. Such messages are not saved and recorded as part of the file by my firm. 42. I have spoken to a number of colleagues, including DWF’s General Counsel, about whether WhatsApp messages would be regarded as part of the client file. They have agreed with me that they are not. I am told that the reason for excluding WhatsApp messages from the file is largely due to the practical difficulties in extracting such messages to the DMS and privacy issues and access to mobile phones. WhatsApp messages are end to end encrypted, private to sender and recipient, and are kept on the personal phones of fee earners or those provided by DWF, where the fee earner chooses to download WhatsApp from the app store unilaterally. If correspondence was undertaken via WhatsApp and a fee earner left the firm, there would be no practical way of obtaining such messages (this is the position with Ben and Tom). It is not clear how a firm of solicitors could possibly consider such items as part of their file if in practical terms they have no control over them and no ability to disclose the messages from private devices or once they have left. There is also no ability to supervise. 43. It is right to say that some clients, including Mr. MacInnes, do use WhatsApp to contact their lawyers. Where this occurs, it is unrealistic to expect the lawyer not to reply. Generally, however, it would be expected that messages using WhatsApp (or text messages) would be short, routine messages and would not contain substantial work or advice or would quickly convert any discussion or advice back to (in our case) Outlook and DMS. 44. In any case, Mr MacInnes already appears to have all the messages which were sent to and from him via WhatsApp in connection with his matter and he does not require disclosure of these. It is in any event not possible to provide messages stored on the phones of other fee earners who have left the firm. I do not believe that any messages were sent to Mr. Carpenter KC, but in any event, those would be privileged. 45. I do not believe that the analysis above is affected by whether Mr MacInnes was charged for any of the messages which he exchanged with DWF fee earners, but that will be a matter for submissions. If DWF should not have charged for those messages, then the answer is to disallow the costs of them in the usual way not to sanction the firm from defending its charges.”[128]One is minded to consider Mr Heap’s choice of words carefully.[129]An expressed ‘belief’, as per paragraph 41, “that WhatsApp messages do not form part of the “file””, seemingly because “Such messages are not saved and recorded as part of the file by my firm”, does not mean they fall outside of the disclosure requirement governed by paragraph 4.4 of the order dated 4 September 2024.[130]The consensus of unnamed colleagues, as per paragraph 42, does not assist the Defendant. Whether or not there are “practical difficulties in extracting such messages to the DMS”, the moment staff of the Defendant chose to communicate with the Claimants via WhatsApp there ought to have been a system in place to record and save the same.[131]There is no suggestion whatsoever that any such messages were exchanged on a personal basis. Indeed that would raise serious questions of concern in terms of the professional solicitor/client relationship. As such, every one of those communications must necessarily have been in a business sense.[132]As to Mr Heap’s reference to “privacy issues and access to mobile phones”, I consider this to be vague and inviting the drawing of inference. As referenced above, unless any of those messages were sent in a personal capacity then it is difficult to envisage how any privacy argument is sustained. Perhaps this is why the Defendant seeks to infer “privacy issues” rather than set out a cogent argument in that regard.[133]I accept the likelihood that those staff who have downloaded WhatsApp likely did so unilaterally and, initially at least, for use in their personal lives. Further, there is no dispute that messages sent via WhatsApp are end to end encrypted.[134]However, I disagree that there is “no practical way” of retrieving messages from fee earners, including from those who have left the firm. In the first instance they simply need to be asked, and to my knowledge they have not been.[135]As I understand matters, the Claimants have adopted a pragmatic view if former fee earners have already deleted WhatsApp messages that were charged for. However, whether one is concerned with current or former staff, one would expect those persons would at least be approached and asked to export only the messages for which the Claimants have been charged.[136]Further, it is premature to talk of privacy issues when such engagement of current and former staff has apparently not even taken place.[137]As to how “a firm of solicitors could possibly consider such items as part of their file if in practical terms they have no control over them” and “no ability to supervise”, that to me seems 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.[138]I also consider there is a distinction to be drawn between the possession of a smart device and how it used. By the Defendant’s logic, a fee earner who uses their personal phone to call a client to report the outcome of a hearing could not charge for the time spent on the phone. One also queries if sending a work e-mail would be treated differently dependent on whether a company computer or personal smart device was used.[139]At paragraph 43, Mr Heap seems to speak in hypothetical terms, affirming what “would be expected” and assuming that “WhatsApp (or text messages) would be short, routine messages and would not contain substantial work or advice” (emphasis added).[140]This does not address the question of whether and to what extent the Claimants were actually charged for such messages. One is reminded that whether the words are typed into an e-mail, SMS, WhatsApp or otherwise, there is a well-established method by which to charge for ‘routine’ communications.[141]Routine communications by their very nature tend not to “contain substantial work or advice”, but that is not the bar for a charge to be raised.[142]In a breakdown in which thousands of e-mails are claimed, and where over a thousand e-mails have been disclosed, and to date no credible explanation provided for some 1000+ missing e-mails, nor a witness statement from the author of the breakdown, one has to at least entertain the possibility that the missing e-mails are in fact routine digital messages sent via other means.[143]As to whether Mr MacInnes already has some or all of the relevant messages, that may be an argument which goes to the costs of assessment. The question I am concerned is whether the order for disclosure has been complied with or not.[144]Paragraph 45 of Mr Heap’s 2nd witness statement is perhaps most telling. He speaks of “whether Mr MacInnes was charged for any of the messages which he exchanged with DWF fee earners” (emphasis added). This indicates Mr Heap does not in fact know if the Claimants were charged for WhatsApp communications.[145]Mr Heap goes on to suggest “that will be a matter for submissions”. However, the purpose of a disclosure direction in a Solicitors Act assessment is to narrow the issues.[146]Mr Heap then says “If (emphasis added) DWF should not have charged for those messages, then the answer is to disallow the costs of them in the usual way, not to sanction the firm from defending its charges.”[147]Again, this presents a confusing picture. On the one hand Mr Heap seems unsure “if” the Defendant has charged the Claimants for WhatsApp communications, whilst on the other he proposes a methodology, i.e. disallowance, to extinguish the need for those messages to be considered. One wonders what exactly would fall to be disallowed if no time is claimed for instant messages, such as WhatsApp?[148]Thus whilst the Defendant seeks to make out the argument that only they can decide what constitutes “the file”, the reality is that the Defendant doesn’t appear to know the answer to that question, seemingly as a consequence of a lack of supervision, absence of a policy, and the apparent rogue actions of current and former staff.[149]For the avoidance of doubt, I don’t consider any of the Defendant’s current or former staff can reasonably be criticized. There is no suggestion of a failure to follow company policy, because there wasn’t one. Nor is there any suggestion of a failure to follow supervisory direction, or inappropriate contact with the Claimants.

Evidence of Mr Stephenson

[150]For the sake of completeness I have reviewed the first witness statement of Mr Stephenson, dated 16 April 2025. He is described as a “Costs Specialist in the firm of DWF Costs Limited” with conduct of the matter, presumably alongside Mr Heap.[151]The statement was made in response to the Claimants’ unless order application.[152]He references the issuance of final statute invoices in May 2023, with amended invoices later produced (which I permitted be the subject of assessment in my September 2024 order). Like Mr Heap, Mr Stephenson does not mention who prepared the amended invoices, nor does he mention who prepared the breakdown of costs.[153]At paragraph 42.2 of Mr Stephenson’s April 2025 witness statement he refers to WhatsApp messages. Essentially, all Mr Stephenson says is that WhatsApp messages were not uploaded to DMS (the Defendant’s case management system). That does not address the question of whether such messages were charged for, or the accepted fact those messages exist elsewhere.[154]Thus Mr Stephenson’s evidence takes matters no further in terms of answering the question of whether or not, as a matter of fact, the Defendant’s fee earners recorded time for communications with the Claimants via non-traditional media, such as WhatsApp or iMessage.

Relevance of the ledger for references to “WhatsApp” entries

[155]It is important to recognise that as part of the arbitration matter upon which the Claimants instructed DWF to act for them, the Defendant had to consider WhatsApp messages exchanged in the underlying dispute between the Claimants and the respondents in the arbitration.[156]That is to be distinguished from WhatsApp messages sent/received by DWF staff in the course of acting for the Claimants.[157]There is no dispute that the Defendant’s staff used WhatsApp as at least one means of communicating with the Claimants. The question is whether the Claimants were charged for it, and on how many occasions.[158]The Defendant’s position is that the Claimants were not charged. That has inevitably led to scrutiny of the Defendant’s ledger, utilising simple search software for the term “WhatsApp”.[159]Thereafter, being careful to recognise the important distinction outlined above as between the use of WhatsApp as a means of communication, and where WhatsApp messages were evidence in the arbitration dispute, I consider that, at least, the entries dated 03/08/2020, 09/11/2020, 16/11/2020, 01/02/2021, 10/11/2021 and 17/12/2022 all either explicitly or implicitly reference WhatsApp messages being charged for as part of the litigation.[160]For the avoidance of doubt, in conducting such analysis, all entries where consideration of WhatsApp messages as evidence in the arbitration were ignored.[161]Thereafter, what is unclear from the ledger is the extent to which WhatsApp communications have been recorded as routine items for billing purposes. That is not a question Mr Dunne could answer without straying into giving evidence of matters which he was not categorically aware of.[162]I queried whether the author of the breakdown was present in court. They were not. Nor have I seen a witness statement from the author of the breakdown.[163]However, it strikes me that if any part of the Defendant’s case is that they categorically did not charge the client even for the sending of even one WhatsApp message, or that the amended invoices / breakdown of costs account for not even one unit of such time, then they have had ample opportunity to put in a supportive statement in this regard.[164]Absent a statement from the author of the breakdown, the Defendant relies only on the evidence of Mr Heap and Mr Stephenson, which I have considered above.

Missing e-mails

[165]One of the most stark features of the dispute as to both disclosure and generally between the parties is the issue of so-called "missing e-mails”. At paragraph 28 of Mr Bacon’s skeleton argument is a reference to the Defendant charging the Claimants for 2,758 e-mails, yet only disclosing at most 1,335.[166]Mr Bacon comments that “The Defendant charged the Claimants £99,288 for the 2,758 emails (page 36 of the breakdown), so they must exist”. In fact the situation may be more concerning than the Claimants comprehend. That is because the reference to 2,758 e-mails concerns those sent to the Claimants by Benjamin Johnson only.[167]That excludes the 674 additional e-mails sent to the Claimants by the other fee earners working on this matter. In that respect, the gulf of missing e-mails may be in excess of 2,000 (and that is in relation to communications between the Claimants and Defendant alone).[168]Mr Heap’s 2nd witness statement addresses e-mails as follows:
“49. I refer in particular to paragraphs 27 to 29 and 42 to 45 of Mr Brighton’s witness statement. Mr. MacInnes’s allegation that emails have been withheld is not correct. As set out above, my firm have undertaken a root and branch disclosure exercise and we are as sure as we can possibly be that there are no emails which should have been provided but have been withheld. Save for emails which are not disclosable at all (due to privilege) the entire process we have undertaken has been designed (including using technology) to ensure every single one has been captured. 50. If the Claimants argue that there are claims within the bill for emails which are not disclosed (and would not be before the Court), then this is a matter for assessment and it will be for my firm to justify the amounts claimed. This is a good example of why it is not in DWF’s interests to withhold documents, because we need to rely upon these to justify our costs when the bill is assessed.”
[169]There will clearly be no privilege in e-mails passing between solicitor and client in a Solicitors Act assessment. Therefore the fact that the Defendant has “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” is troubling, when over 2,000 e-mails to the Claimant alone appear to be missing.[170]Given the absence of explanations in Mr Heap’s and Mr Stephenson’s witness evidence, and the glaring absence of a witness statement from the author of the amended invoices and breakdown of costs, 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. Decision[171]I begin by addressing the suggestion that the Claimants are seeking disclosure of WhatsApp messages purely to assist their preliminary issue point about retainer enforceability. Whilst that ultimately may be a by-product of a successful application, it does not extinguish the central question of whether the Defendant is in breach of the order for disclosure.[172]In so far as Mr Dunne cited that WhatsApp messages can be set to self-delete on a timer basis or lost entirely following a change of device, I consider these are part and parcel of the clearly predictable pitfalls of failing to have adequate systems and/or policies in place.[173]In any event, stating what can happen and what did happen are two very different things. At no time has the Defendant made the argument that certain WhatsApp messages were deleted by virtue of a self-delete timer function, nor was it suggested that certain WhatsApp messages have been lost due to a change of phone. These were simply hypothetical reasons advanced by counsel as to why a message may no longer be accessible.[174]Indeed the SRA executive summary document dated 30 July 2024 covers these very points, i.e. the importance of having a system in place to save messages, telling staff what mediums they may or may not use to communicate with clients, and telling staff when not to use or not to charge for using those mediums.[175]During the course of Mr Dunne’s submissions, he asserted, as a matter of fact, that the Defendant’s position is that there are no WhatsApp communications on the Defendant's file. This prompted me to query if the author of the breakdown was present to answer questions regarding the missing e-mails or what they elected to count as e-mails when they prepared the breakdown. Upon checking, Mr Dunne confirmed that the author of the breakdown was not present.[176]I also pressed Mr Dunne on whether DWF had a written policy in place at the time concerning the use of WhatsApp by fee earners to communicate with and charge clients for. Mr Dunne confirmed no formal policy was in place, and whilst he spoke of an informal policy there is no evidence to support that contention.[177]In opposing this application, the Defendant’s case, it seems to me, advances two key questions. Firstly, what is or isn’t a solicitor’s file when inspection or disclosure is ordered in Solicitors Act proceedings. Secondly, is there a reason to be prescriptive when ordering inspection or disclosure in a Solicitors Act assessment.[178]The answer to both questions is circular. There should be no reason to be prescriptive when ordering inspection or disclosure in Solicitors Act proceedings because at the point the order is made, the court and paying party is not privy to what the breakdown is going to include or exclude, nor how informative the breakdown is going to be.[179]Once the breakdown has been produced, any order for inspection or disclosure will be in terms of the matters upon which the client has been charged, not upon on what individuals have decided to upload (or not upload) to a case management system.[180]In terms of whether, as a matter of principle, WhatsApp communications can form part of disclosure, the answer is of course they can. Further, that conclusion is not limited to WhatsApp communications only. The key question is whether the client has been charged for it.[181]If a WhatsApp, iMessage or communication via another platform has led to a client being charged then it must form part of any inspection or disclosure ordered because that communication is necessarily part of the file once a charge has been raised.[182]As to whether, as a matter of principle, inspection or disclosure can include the personal phones of staff, the answer is dependent on the whether a charge has been raised.[183]The court is not being invited, nor has it been argued, that the Claimants should be given unfettered access to the mobile devices of the Defendant’s former and current staff, whether they be personal or company devices. Nor are the Claimants seeking unfettered access to the entirety of applications on such devices. The Claimants are only seeking disclosure of documents related to the matters upon which they have been charged for.[184]For example, if there were 10,000 WhatsApp messages to 1,000 people on one mobile device, and the Claimants had been charged for 3 messages in total, then the Claimants’ argument is simply that those 3 messages form part of the file and should be disclosed. There should be no reason, or indeed basis, to seek sight of the other 9,997 messages to the other 999 people. There should be no reason to have physical access to the device, nor was that argued for.[185]Consistent with that approach, the Claimants are seeking disclosure of only those documents related to the matters for which they have been charged. There is no semblance of seeking to breach anyone’s privacy or access privileged information.[186]As to the notion something personally owned cannot lead to a client charge, one thinks of the extremely common use of personal mobile devices outside of court to speak with a client, counsel, or colleagues about the case before/after a hearing. One cannot imagine a firm of solicitors not charging for that time simply because of who owned the hardware from which the call was placed.[187]Thereafter, I fail to see the difference when that call is replaced with a typed out message. One could extend that example to an e-mail sent from a work account but accessed via a personal device. Again, I fail to see why a message typed as an e-mail ought to be treated differently if those same words are typed as an instant message via a service such as WhatsApp.[188]In relation to the discussion between bar and bench on 22 April 2025 (at page 47 of the transcript) the guidance I provided followed a very basic premise, i.e. that if you charged for it then it’s part of the file.[189]For example, page 208 of the bundle displays a number of iMessages from 2020. The nature of those messages does not appear to be purely administrative and naturally begs the question whether a charge was raised for any of those iMessages.[190]This perhaps also highlights that the issue here is not exclusively about the use of WhatsApp, but rather the general use of more than one form of communication and in what circumstances a charge may be raised for each form of communication. Thus, although this judgment refers to WhatsApp on several occasions, I do not consider that the arguments raised are limited to WhatsApp.[191]Firstly, because the logic of the parties’ respective submissions are applicable to any form of text based application on an employee’s mobile phone used for the purpose of communicating with clients.[192]Secondly, because the parties’ submissions touch on the question of what is a file. The answer to that question cannot simply be a case of the traditional record of letters, calls, e-mails and documents plus WhatsApp. That would be far too simplistic.[193]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.[194]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).[195]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.[196]The sanction contained in that order shall therefore apply, as amended pursuant to CPR 40.12, for which please see below.

Costs, next steps, and slip rule

[197]Whilst the Claimants have succeeded to some degree in their application for a declaration, the application remains part heard due to a lack of time to address sections (2) and (3) of the application. In the circumstances, the costs of this application are costs reserved at this stage and the application is adjourned part-heard.[198]The Claimants shall, within 7 days of the formal handing down of this judgment, confirm to the Defendant and the court whether sections (2) and (3) of the application are pursued, and where pursued shall liaise with the Defendant prior to informing the court of a time estimate and mutually available dates.[199]The Defendant shall, within 7 days of the formal handing down of this judgment, confirm to the Claimants and the Defendant’s whether the relief from sanction application is still pursued, and where pursued shall liaise with the Claimants prior to informing the court of a time estimate and mutually available dates.[200]All consequential matters (including permission to appeal and costs relating to this application) shall be adjourned to be dealt with following judgment being given on the balance of the applications referred to above or until the balance of the applications are withdrawn, whichever is sooner.[201]In so far that an issue has arisen as to the sanction that now applies as a consequence of my conclusion that the Defendant has not complied with the unless order dated 22 April 2025, namely whether the Defendant may participate in the preliminary issues hearing, I observe as follows.[202]The preliminary issues hearing is intended to address: - Unenforceability of the CFA; - Wrongful termination of the retainer; - The success fee; and - Reliance on estimates.[203]Due to a lack of time on 22 April 2025, I agreed that counsel would have carriage of the drafting of the order following my ex tempore judgment, a transcript of which appears at pages 78-81 of the bundle. Advocates who offer to have carriage of the drafting of a judge’s order are expected to accurately reflect what the judge determined.[204]It has been pointed out to me that the sanction element of the unless order states “Unless the Defendant, by 4pm on 20 May 2025, do comply with paragraph 4.4 of the Order dated 04/09/2024, the Defendant shall be debarred from participating further in the detailed assessment hearing save for the purpose of giving evidence on any preliminary issues.”, which does not in fact accurately reflect what I determined.[205]In so far as the Claimants seek to rely on an argument that the parties decided the sanction when drawing up the order, that is simply not the case. I was content for the parties to have carriage of the drafting of the order, mainly because I was satisfied they understood what sanction in default I was prepared to order, and thereafter the parties were best placed to decide on dates for compliance / next steps, and what the list of preliminary issues would be.[206]At paragraph 11 of my judgment I concluded the sanction in default would be that “the defendant be debarred from participating in the detailed assessment hearing.” and, crucially, “That would exclude any preliminary hearings in which evidence might be otherwise heard.”.[207]Accordingly, my decision is that paragraph 1 of the order dated 22 April 2025 shall be amended under the slip rule to replace “save for the purpose of giving evidence on any preliminary issues” with “save for the purpose of any preliminary issues hearing in which evidence might otherwise be heard”.[208]For the avoidance of doubt, this means that the Defendant is not debarred from participating in the preliminary issues hearing in February 2026, but is debarred from participating in the main detailed assessment (once listed).[209]In addition to the balance of applications to be heard, as referenced above, the parties shall in any event now prepare to attend and participate in the preliminary issues hearing listed for 9-12 February 2026 and shall liaise with the clerk to Costs Judge Nagalingam with regards to the number of witnesses, if any, that are likely to be called for cross-examination.[210]The Claimants shall also, within 7 days of the formal hand down of this judgment, e-mail the clerk to Costs Judge Nagalingam with: i) A time estimate for the item by item detailed assessment. ii) Dates of availability for the period March to September 2026 inclusive.

order

“43. It is right to say that some clients, including Mr. MacInnes, do use WhatsApp to contact their lawyers. Where this occurs, it is unrealistic to expect the lawyer not to reply. Generally, however, it would be expected that messages using WhatsApp (or text messages) would be short, routine messages and would not contain substantial work or advice or would quickly convert any discussion or advice back to (in our case) Outlook and DMS.”