In the post Mitchell world parties are anxious to demonstrate that their opponents have not complied with orders of the court and, consequently, should have their actions struck out. These arguments are likely to be particularly problematic in issues relating to whether adequate disclosure has been given. The question of whether disclosure is full and adequate is likely to be keenly disputed, particularly when the stakes are high and a peremptory order has already been made. The Global Machine case provides another example of the problems that can occur and arguments that will be raised.
The Claimant brought a claim against ten defendants claiming sums due for an alleged breach of a solicitor’s undertaking.
THE FACTS LEADING TO THE APPLICATION
- During the proceedings an order for specific disclosure was made. This stated that the claimant’s had to provide disclosure of specific documents by the 30th September 2013. Disclosure had to be given of documents contained in two schedules.
- The claimant did not meet the deadline of 30th September 2013.
- The defendants subsequently made an application to have the claim struck out for non-compliance with the order or alternatively for an unless order with a seven day deadline.
- At the hearing a consent order was made, providing for the disclosure sought in two parts, on an ‘unless order’ basis.
- The claimant’s disclosed the documents in two formats, electronic and printed. Their disclosure also contained a number of privileged documents.
- Upon discovering the privileged documents the defendant’s stopped their review of the documents and applied to have the claimant’s claim struck out for non compliance.
THE DEFENDANTS’ ARGUMENTS
The Defendants argued that there had been non compliance with two orders and the action was struck out.
(1) The court could infer non compliance with the unless order from the inadequacy of the evidence about searches that have been conducted. There was evidence that at least one email was not disclosed when it should have been and there was an inference from this that further disclosable documents had not been provided.
(2) The claimant erroneously disclosed privileged documents. The claimant’s should have taken steps to ensure that this did not occur. It was right of the defendant’s solicitors to stop their review having discovered privileged material. The fact that the claimant disclosed privileged material without waiving that privilege meant that there was non-compliance, because disclosure of a document which the solicitor can neither read nor pass to their client is not disclosable at all.
THE CLAIMANT’S RESPONSE
The claimant accepted that the initial stages of disclosure had been poorly performed. However they argued they had complied with the latest unless order. A detailed witness statement was provided which detailed the process which had been used to collate the documents. The Defendant’s could only point to a single one line email which was undisclosed.
In relation to the privilege point the claimant argued that it is not a breach of an order to give too must disclosure as distinct from too little. The mistake was inadvertent and the defendant did not have to stop their review of the documents.
THE JUDGE’S CONCLUSION
The judge concluded that the claimant had not breached the unless order and therefore its claim should not be struck out.
DISCLOSING PRIVILEGED MATERIAL DID NOT AMOUNT TO A BREACH OF THE ORDER
“39. Dealing first with the privilege point, I do not think that the inadvertent inclusion, within a list of documents, or privileged documents under the heading of documents in respect of which privilege is not asserted, and the subsequent inadvertent disclosure of those privileged documents, constitutes a failure to comply with the order pursuant to which production of that list, and disclosure of the documents listed, was required to me made. No authority for that proposition was cited to me.
40. It seems to me that if, as is the case, the failure to claim privilege means that the list would have to be amended in order to get to the correct position, it does not follow from that proposition that the unamended list was produced in breach of the order requiring its production. All that it means is that in the initial unamended list no assertion of privilege was made in respect of documents that could have properly been the subject of an assertion of privilege. That can happen deliberately, because the party chooses to waive the privilege, or as in this case it can happen inadvertently, where the party does not intend to do so.
41. A prudent solicitor will always do what Mills & Reeve rightly did in this case, which is not to assume the former, but to check that it is not the latter before looking at any of the documents. That happens quite often in litigation. In complicated litigation conducted under time pressure, errors can be made about privilege. I think that is a separate issue from the issue of compliance with the unless order and I do not find that the unfortunate ineptitude in including privileged documents in the wrong part of the list is such as to amount to a breach of the unless order.”
THE COURT COULD NOT DRAW AN INFERENCE THAT DISCLOSURE HAD NOT BEEN COMPLETE
The judge also found that it was not permissible on the evidence before the court to draw an inference of non compliance from the unsatisfactory circumstances in which disclosure had taken place right up to the eleventh hour.
43. The fact is that after all the carrying out of all the examinations and enquiries documented in the witness statements before me right up to today, only a single solitary two line email is unaccounted for in the claimant’s disclosure. That does not, to my mind, either by itself or taken in the context of the evidence as a whole, prove to my satisfaction that the email was wrongly omitted from the claimant’s disclosure. It may have been; but equally, it may not have been in the claimant’s possession for some reason or other. For all I know that email could have been deleted from the relevant computer on the claimant’s side in 2010 or 2011, inadvertently or otherwise.
44. It would be a different matter altogether if that email were part of a pattern or hundreds or thousands of similar omissions to disclose; or if the email was a critical document in the case of obvious probative value whose non-disclosure gave rise to reasonable grounds for suspecting concealment. But that is not the position; it is a short and innocuous document, which one would expect to find in the claimant’s possession, but it is only one document, its non-disclosure is not particularly extraordinary and its content is not such as to give rise to reasonable suspicion of concealment.
45. So I do not find that the omission to disclose that email is sufficient to constitute a breach of the order, nor that the evidence taken as a whole, including the omission to disclose that email and the earlier history of the unsatisfactory and inadequate disclosure in dribs and drabs, is sufficient to ground the inference that what has been disclosed now, very late, is less than complete.
- There are likely to be major battles on the issue of whether disclosure has been given, particularly after a peremptory order.
- Accidental omissions of a minor nature do not normally give rise to an inference of non-disclosure.