In Digicel (St Lucia) Ltd and other companies v Cable and Wireless plc and other companies – Butterworths Law Direct 23.10.08 the Chancery court, in hearing an application for specific disclosure by the Defendants of certain classes of electronic documents, including an order that the Defendants restore relevant back-up tapes for the purpose of searching for the email accounts of certain former employees, decided that, by the wording of the CPR, the task of deciding what was required by 'a reasonable search' for the purposes of r 31.7 was a task given to the court.
Paragraph 5.4 of Practice Direction 31 made it clear that the procedure of applying to the court for an order for specific disclosure was available where the applicant alleged that the respondent was in breach of its obligation to give standard disclosure, whether by failing to make a sufficient search for documents or otherwise. Where there was a failure to make a sufficient search, the court would 'usually' make such an order as was necessary to ensure that the obligations on the respondent were complied with.
The task of deciding what was required by a reasonable search was a task given to the court by the wording of the CPR. That task could be carried out by the court either in advance of the search being done, or with hindsight, where a search had been carried out and its extent was challenged by the other party.
There was no warrant in the language of the CPR or the PD for the Defendants' suggested approach, namely that the solicitor in charge of the matter should decide what was a reasonable search in the first instance and that the court should only reach a different conclusion if the solicitors’ decision was unreasonable. In this case, the Defendants had not carried out a reasonable search in so far as they had omitted to search for, and in, the specified email accounts, to the extent that those email accounts might exist in the back-up tapes which had survived. However, it was inappropriate to make a simple order pursuant to r 31.12(2)(b) that the Defendants restore the identified back-up tapes so far as was necessary to identify and search certain email accounts. Such an order did not address the possibility that restoration might not be possible or that it might emerge that restoration was only possible at an utterly prohibitive level of cost. Further, such an order did not address the possibility that it might be possible to recover about 90% of an email account with comparative ease, but the remaining 10% would involve difficulty and cost of a different order and magnitude.
The parties' solicitors would be ordered to meet to discuss how best the restoration of the back-up tapes could be done, such a meeting to be followed by a restoration of the back-up tapes as soon as was reasonably practicable.