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In today’s fast-paced world, professional communications increasingly happen over WhatsApp, iMessage, and similar instant messaging apps. While these platforms offer speed and convenience, they also create a risk of information, which would normally be retained on a client file, being lost.
In professional negligence claims, contemporaneous records are often central to a successful defence. It is not unusual for claims to be brought years after work was carried out, and without a complete file of documents, it can be difficult to remember, or evidence, what happened.
Evidential issues due to improper record keeping
Whilst this is dependent on a professional service firm’s internal policies, messaging apps are sometimes hosted on personal devices and often sit outside formal document management systems. Messages can be edited, deleted, or lost entirely - particularly where staff turnover or device loss occurs.
While the format may be new, the absence or inadequacy of written records has long been a key feature in professional negligence disputes. These disputes often revolve around the scope of a retainer, the information provided by a client, or the advice given, or not given, on specific matters. While previously gaps in attendance notes may have been supplemented by emails, if messages are instead sent via informal channels and not retained, the scope for disagreement increases.
Failure to preserve records may not, on its own, prove negligence but it can make it much harder to rebut allegations of poor or incorrect advice. Where no record remains of messages exchanged, and recollections have faded with time, the professional will only be able to confirm what they are likely to have advised in line with their usual practice, which will never carry as much weight as a written record.
Impact of failure to adhere to regulatory obligations on professional negligence claims
Regulated professionals and firms are bound not just by duties to their clients, but also by relevant regulatory obligations. UK regulators usually expect professionals to maintain proper records and ensure that client data is properly handled and stored. If a negligence claim arises, the court may consider whether a practitioner met their relevant professional standards.
While breaching a policy or regulation does not automatically establish negligence, it may be compelling evidence that the professional fell below the standard of care expected.
Best practices
To ensure that any allegations of negligence can be properly answered, professionals and firms should adopt a cautious and proactive approach to informal messaging:
- Use authorised platforms only: Conduct all professional communications through secure, approved systems.
- Follow up in writing: If advice is given via an informal communications app, immediately follow up with an email, draft a file note, or download the message to the file to ensure a formal record exists.
- Train your team: Ensure staff understand the potential risks of using informal communication methods for work without keeping proper records.
- Implement robust policies: Policies should clearly state what can and cannot be shared over informal channels, and how confidentiality is maintained.
- Don’t assume messages are private: Communications on messaging apps may be disclosed in litigation, regulatory investigations, or internal reviews.
- Implement procedures regarding the retention/deletion of business communications: Communications should be retained for an appropriate period in line with legislation and regulatory guidelines.
- Ensure relevant information is retained if a potential claim comes to light: Parties to a dispute have a duty to preserve relevant information as soon as litigation is contemplated. They should amend/suspend any deletion policies applicable to relevant information until the litigation has concluded. Failure to do so may give rise to serious consequences.
Final Thoughts
Informal messaging is now part of working life but legal duties remain unchanged. If key advice is undocumented, or communicated outside approved channels, professionals may find this impacts their ability to properly defend any professional negligence claims.
Firms and individuals alike should review their communication practices, formalise their approach to client correspondence, and ensure they meet the standards expected - no matter how the message is delivered.
further information
If you have any questions regarding this blog, please contact Lavanya Loganathan in our Dispute Resolution team.
about the author
Lavanya has a range of experience in complex high-value disputes, including civil fraud claims and investigations and breaches of contract. She acts for claimants and defendants, including corporate entities and individual clients in both domestic and cross-border disputes.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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