This article discusses the recent TCC judgment by HH Stephen Davies in Contact (Print And Packaging) Ltd v Travelers Insurance Co Ltd [2018] EWHC 83 (TCC), specifically with regards to preserving documents for disclosure, which is a key stage in any litigation. Much of the case turns on the particular facts but the Judge made some comments which are of more general interest, in particular in relation to the business interruption aspect of the claim, which largely failed – the insured recovered c£19k against a claim for c£435k. This was in part due to the complete absence of contemporaneous documentary evidence to support the claim, which the Judge said should have been preserved and disclosed.

The reason behind the lack of documents is that the claimant sold its business shortly after serving a Letter of Claim, and without giving appropriate thought to the possibility that more relevant documentation might be required than had already been obtained, in the event that this claim was pursued. On selling the business, the claimant decided, for financial reasons (which the Judge accepted was understandable) not to renew the operating licences for the principal IT software systems. However, importantly, in so doing, the claimant did not take any steps to ensure continued access to the relevant data for the purposes of the claim, whether from the new purchaser (by way of access either to the data or to the hardware from which the data was accessible) or from the suppliers of the relevant software. Whilst the Judge concluded, having considered the evidence, that there was no realistic likelihood that there were documents relevant to liability which existed and which were not, but could have been, disclosed had proper steps been taken, he was less forgiving in relation to those documents necessary to prove the quantum of the business interruption claim, given the onus was on the claimant to prove its case. The judge took the view that, where the claimant might reasonably have been expected to provide more documentation in relation to a particular issue but had not, it should not be given the benefit of the doubt in relation to that issue, in circumstances where it had failed to take proper steps to ensure that relevant electronic information was preserved for the purposes of this claim.

This case serves as a useful reminder of the importance of preserving your documents and/or access to documents, particularly in circumstances where a claim has arisen or could arise. It is important to note that the Civil Procedure Rules define “documents” very broadly as meaning “anything in which information of any description is recorded”. In addition to hard copy, paper documents (such as correspondence, agreements/contracts, handwritten notes, memos etc), it extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media (such as mobile phones and memory sticks), the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been “deleted”. It also extends to additional information stored and associated with electronic documents known as metadata.