Case Alert - [2018] EWHC 176 (TCC)

Judge criticises unilateral decisions taken by a party during the disclosure process and orders a fresh manual review

The defendants sought two orders from the court following the claimants' disclosure:

  1. An order that the claimants provide the list of 860,000 folders and file paths (which had been identified by the claimants on a shared drive) to the defendants so that they can see whether any additional folders or file paths should have been searched. That order was refused by Coulson J. Although the claimants had acted without consulting the defendants (and it would have been better to have consulted), the process had been clearly set out in the claimants' original list of documents and so the defendants had had 17 months to raise this complaint. In any event, this method had been sensible and proportionate on the facts, especially as the defendants had been unable to identify any obviously missing folders/file paths.
  2. An order that the claimants undertake a manual review of the balance of 220,000 documents (out of a total of 450,000) which had been identified as potentially disclosable following the keyword search. The parties had agreed on keywords but the claimants had unilaterally used a Computer Assisted Review ("CAR") to conclude that only 0.38% of these documents would be relevant. Coulson J held that both the CAR exercise and the sampling exercise that it produced, had not been transparent or independently verifiable. The Electronic Documents Questionnaire had referred to a manual review of all documents and "At no time have the claimants provided relevant details as to how the CAR was set up or how it was operated. In circumstances where the decision to use the CAR was unilateral, and where the defendants had no input into it at all, that is unsatisfactory". It was also not apparent that there had been any overseeing senior lawyer.

The judge ordered the parties to agree a methodology by which a sample of 25% of the 220,000 documents would be manually searched. That search was to take no longer than three weeks.

In reaching his decision, the judge also commented that the TeCSA/TECBAR edisclosure protocol, used as a guide in every TCC case involving electronic disclosure, was of "even greater value" than PD 31B and criticised a comment by Master Matthews in Pyrrho Investments v MWB Property that the protocol had "no normative force": "With respect, that rather old-fashioned approach misunderstands the importance of protocols in the TCC, where the court's overarching requirement is that the parties cooperate and comply with them, unless there is a very good reason why not".