Introduction

When sending contractual notices and other communications it is important to consider the contractual and/or statutory provisions regarding the form the communications should take.

For example, NEC requires that ‘communication which the contract requires is communicated in a form which can be read, copied and recorded.’ JCT provides that notices and other communications shall be in writing and can be ‘sent or transmitted by the means … as the Parties have agreed’ in the contract. Under the Construction Contracts Act 2013, if the parties do not agree on the manner for delivery of notices, then the notices can be delivered ‘by any effective means.’

Commonly most notices, with perhaps the exception of termination notices, and other communications regarding construction contracts are delivered by email. We have seen in a number of adjudications where WhatsApp messages have been introduced as evidence. The introduction of such communications can undermine a party’s position. Often a party may not even be aware of the WhatsApp messages as they may have been sent by personnel on site.

For example, in resisting a payment claim in an adjudication, a responding party may argue that the referring party provided defective work or delayed performance and therefore should not be paid the claimed amount. However, if it later emerges that the responding party’s site personnel had sent WhatsApp messages thanking the referring party for providing a great service, this can undermine the responding party’s position.

It is perhaps timely that the courts in England and Wales have provided guidance on the contractual status of WhatsApp messaging.

Case Law on WhatsApp messaging

In Southeaster v Trafigura [2024] EWHC 255 (TCC) the court had to consider the status of WhatsApp messaging in the context of contract formation.

In relation to the WhatsApp messages, the court stated that:

129 … the suggestion that the message should in some way be disregarded, or is somehow of less significance, because it came via WhatsApp rather than e-mail. There is nothing in the prior correspondence which indicates that messages, conveying the position of the Owners, could not be sent by WhatsApp, or that this was in the nature of an unofficial channel …

130 Furthermore, if the words in the critical message had been given orally, rather than by WhatsApp, I see no reason why they should have been disregarded. It is likely that, if given orally, there would have been a dispute about what exactly had been said. … The advantage of using WhatsApp to convey messages is that there is a record of what is said.

Conclusions

As indicated in Southeaster WhatsApp messages have the benefit of recording what is said. However, because it is an instant messaging service it is important to think carefully before sending a message. Consequently, should a party wish to exclude the use of WhatsApp messaging as a means of sending notices or other communications under the contract, it is preferable that this is expressly stated in the contract.

Separately, WhatsApp messaging may have evidential value in adjudication or other dispute resolution procedures. The WhatsApp messages may be to a party’s advantage or disadvantage. From our point of view, it is much easier to prepare for and proceed with an adjudication where most if not all communications use the same communication channel. Therefore, it is advisable for contractors and sub-contractors to have a policy in place that contractual correspondence and communications about the project in question should not take place by way of WhatsApp. It is advisable to warn personnel on the dangers of using WhatsApp messages, which may be used as evidence in a later dispute. Such a policy reduces the chances of an opposing party presenting WhatsApp messages during an adjudication process, which undermines your position.