Court considers whether respondents complied with a disclosure unless order

The applicants applied for relief from the sanction imposed by an earlier unless order – namely, that the proceedings would be automatically struck out if a reasonable search for documents (as part of standard disclosure) was not conducted (and a list provided) by a certain deadline. The disclosure exercise conducted by the applicants was said by the respondents to have been defective on three grounds. Although the original decision to uphold the strike out was based on one ground, in this case all three grounds were considered. They were as follows:

(1) No reasonable search had been carried out (the ground on which the strike out decision had been upheld). In particular, it was alleged that a certain category of documents, although referred to earlier in the proceedings by the applicants, had not been disclosed. This was held to be a serious failure which had occurred due to human error (the relevant employee having failed to search for these documents). However, Pelling QC HHJ held that this failure had not been significant because "once the omission was pointed out it was the work of a few phone calls to establish what had happened and the omission was easily resolved, and was in the end resolved, by service of a supplemental list that was compliant" (as far as these documents were concerned). Hence the proceedings should not have been struck out on this ground.

(2) The disclosure list had not complied with CPR r31.10 (which provides that documents must be identified "in a convenient order and manner and as concisely as possible" and provides further details on how this should normally be done). The applicants had sought to rely on the provisions of PD 31B, but it was held that that practice direction applies only to electronic documents and not to hard copy documents which are scanned into an electronic database in order to carry out the disclosure exercise.

Although it was held that the list had not complied with the requirements of CPR r31.10, the judge found that this was not significant here because, by giving the respondents access to a searchable database of scanned documents, it would have  been "the work of a moment" to click through to the actual document and see what it consisted of.

(3) Documents had not been properly disclosed. The particular issue here was that when hard copy documents were scanned onto the database, the OCR process (which converted scanned versions into an electronic format which can be searched) had resulted in OCR scans which had been of such poor quality that a keyword search of those documents had failed reliably to return documents with those keywords. The judge considered the various factors set out in CPR r31.7(2) to determine whether a search has been reasonable (eg the number of documents involved) and concluded that no reasonable search had been carried out. The applicants ought to have increased the resources being made available to physically examine all documents not yet examined once it had become clear that the OCR scan was defective.

The judge concluded that it would therefore be inappropriate to grant relief from sanctions in this case.