Eaglesham v MOD  EWHC 3011
Solicitors should take heed of this recent case in which the Defence was struck out in a claim valued at £6 – 8M because the Defendant failed to comply with an unless order on disclosure.
In 2013 the Claimant issued a claim against the MOD arising from the treatment he received for Q Fever, which he contracted whilst serving in Afghanistan. Following issue by the Claimant of an application for specific disclosure, the MOD agreed to an order that it provide further disclosure by 18 September 2015. However, the MOD failed to comply, and eight months later – in May 2016 - it applied for an extension of time to 21 October 2016.
At a hearing on 5 July 2016 the extension was granted on unless terms. The Judge hearing that application was assured by the MOD's evidence that its disclosure plan was accurate and the extension sought was realistic (to include the time required for ministerial review of material which may be subject to a claim for Public Interest Immunity).
One day before expiry of the unless order deadline, the MOD applied for a further extension, for a variety of reasons: more documents had been located than anticipated, technical problems had been encountered and its resources were limited. Mrs Justice Andrews found that the technical problems were not the MOD's fault, but neither were they the major cause of the delay. She was unimpressed with the MOD's position: the MOD was aware that it needed to look at significantly more documents by early September 2016, and was critical of its failure to alert the Claimant's solicitors and the Court to its difficulties at that stage. The Judge criticised the MOD's original approach to searching for electronic documents which omitted to use search terms which were obviously likely to throw up relevant material. The volume of documents should have been foreseen, and - save for the technical issues - the difficulties encountered were within the MOD's control.
Taking into account the serious breach of an unless order, without reasonable excuse, and the delay which would be caused in the claim if the application was granted, the Judge refused the extension. A liability judgment was entered against the MOD, with quantum to be assessed.
The cost of the MOD's disclosure mistakes in this case should serve as a real wake up call to litigators. The volume of electronic disclosure which the MOD had to deal with in Eaglesham was not particularly large, but it appears the disclosure exercise was not appropriately planned or resourced.
Well before the (first) CMC, lawyers need to be armed with the right information so that they are best placed to propose suitable disclosure directions, and cogently articulate to other parties and the Court why they are appropriate. This should result in a disclosure timetable which is achievable, so there is no need for a subsequent extension of time. Alternatively, it should provide good evidence that disclosure was appropriately considered at outset, and that the difficulties subsequently encountered could not reasonably have been foreseen, so that any application for an extension of time subsequently required is seen to be reasonable. Some practical points to consider include the following:
Lawyers should ensure that clients are given prompt instructions, at the outset, to preserve hard copy and electronic documents which may be required to be disclosed in due course. In appropriate cases, consideration should be given to early forensic collection of the relevant material (e.g. by obtaining an image of the relevant server).
At an early stage lawyers should engage with their client to devise a disclosure plan covering the potential data sources which require investigation, the likely volume of documents to be considered, and other issues, e.g. proportionality, privilege, public interest immunity. This is likely to require information to be gathered not only from the person giving instructions to the lawyers, and the IT department, but also the people on the ground who dealt with the subject matter. This should inform the data range during which relevant data would have been created, and where the relevant data is likely to have been stored. All this will assist to gauge the cost of searching for and collecting the data, the most appropriate way to review it, and the likely time that will be required.
Once data is collected from the appropriate sources, lawyers should allow sufficient time to properly consider, in connection with an edisclosure provider if appropriate, how to narrow down the data that actually requires review, e.g. by applying date filters, and/or keywords. The Eaglesham case highlights the importance of carefully considering the appropriate keywords. Ideally keywords should be tested in advance of any disclosure order being made to ensure that they are bringing up relevant material.
Lawyers should also consider using technology so that resources can be deployed efficiently. For example, de-duplication software and email threading can drastically reduce the number of documents which lawyers are required to review. In appropriate cases Technology Assisted Review may also be used to reduce the time required to carry out review.
As far as possible, potential problems which may lead to delay should be anticipated, and time built into the timetable to allow for them.
If it becomes clear at any stage that a disclosure deadline is at risk, lawyers should promptly consider the steps required to put matters right, the time required to do so, whether an application is required and early communication with other parties and the Court.