Bruce MacInnes & Anor v DWF Law LLP

In Solicitors Act assessment proceedings, the court may order inspection or disclosure even though CPR 46.10 does not impose an automatic disclosure stage. Where an order requires a complete digital copy of the solicitor’s files, compliance is assessed by reference to the matters charged to the client, not merely to documents uploaded to a case-management system.

Communications made through WhatsApp, iMessage or another platform form part of the file where the client was charged for them. This applies regardless of whether the communication was made using a personal or business device. The required disclosure is limited to communications connected with the charged work and does not justify unfettered access to staff devices.

The claimants, as paying parties in Solicitors Act assessment proceedings, applied for a declaration that DWF Law LLP had failed to comply with an unless order requiring disclosure of the complete digital copy of its files. The order carried a sanction debarring DWF from participating further in the detailed assessment if disclosure was not completed.

DWF accepted that WhatsApp communications had been used but maintained that they were not part of its files because they had not been saved to its case-management system. The claimants argued that the communications had been charged for and therefore fell within the disclosure order. The central issue was whether the order had been complied with and, if not, what sanction followed.

1. Disclosure jurisdiction. Although CPR 46.10 does not automatically impose inspection or disclosure in Solicitors Act proceedings, the court has a wide discretion to order it. The existing disclosure order had not been varied, set aside or appealed and remained binding.
2. Meaning of the order. The requirement to provide a complete digital copy meant a digital copy of the complete files connected with the instructions described in the amended invoices. It did not mean disclosure of the digital case-management system alone. Practice Direction 47 paragraph 13.12 was not prescriptive and did not exclude documents by source.
3. Charged communications. The relevant question was what the client had been charged for. If a WhatsApp, iMessage, email, call or other communication led to a charge, it formed part of the file and fell within the disclosure order, irrespective of the platform, device ownership or whether the communication had been uploaded to the firm’s system. The order did not require unfettered access to staff devices or unrelated messages.
4. Compliance and sanction. The ledger showed that charges had been raised for WhatsApp communications. DWF had not disclosed those communications and had not shown that it had approached current or former staff to obtain them. The court therefore found a breach of the unless order and held that the sanction applied.
5. Slip rule and next steps. Under CPR 40.12, the sanction was corrected so that DWF remained entitled to participate in the preliminary issues hearing in February 2026, where evidence might otherwise be heard, but was debarred from participating in the subsequent main detailed assessment. The remaining applications, consequential matters and costs were adjourned.

This was a first-instance decision in Solicitors Act assessment proceedings. The judgment records earlier disclosure orders and an unless order, but states no appellate history.