Disclosure order and effect of missing documents from the list and failure to describe documents
The court made an unless order against the claimants to carry out disclosure and provide a list of documents to the defendants by a certain date (the claimants having failed to carry out a satisfactory disclosure exercise prior to this order). The defendants claim that the unless order was breached because the claimants’ disclosure was defective in two ways:
- Missing documents. The defendants were able to demonstrate that certain categories of documents, which were plainly relevant and in the claimants’ possession, had not been included in the disclosure list. Birss J noted that the claimants had been under a duty to conduct a reasonable search i.e. a search which was conducted in good faith and was fair and proportionate. Referring to the decision in Digicel v Cable & Wireless (see Weekly Update 42/08) it was noted that the rules do not require no stone to be left unturned. Instead: “The deficiencies relied on have to be so significant that it can be said that a reasonable search simply had not happened”. That was not the case here. Although two classes of relevant documents had been missed, the search had been extensive and had been carried out in good faith (although, in error, it was not realised that the documents in question had not already been uploaded onto the database). The judge concluded that “the fact these two classes were missed does not support an inference that the exercise itself was not a reasonable search”.
- Nature of the disclosure list. CPR r31.10 provides that the list must give a short description of each document so that it could be identified. It also requires documents to be identified “in a convenient order and manner and as concisely as possible”. The list was produced by the provider’s e-disclosure software. This contained 5 columns of information (e.g. subject/filename; from/author etc). A large proportion of these columns were not completed and some documents were identified with only a single word (egg “spreadsheet”).
Birss J agreed with the claimants that this was not a breach of CPR r31.10. Where no relevant disclosure data exists, a field should be left blank (see PD 31B para 31(2)). Nor do the rules require the claimants to create information which does not exist or cannot reasonably be ascertained. The defendants could have undertaken their own searches of the database (to which they had access) to find documents which they might be interested in.
Furthermore, PD31B did apply even though the documents in question were hard copy documents which had been scanned into the database in order to carry out the disclosure exercise. Although strictly speaking they were not originally “electronic documents” (as defined in PD 31B para 5), the judge said that it would be absurd not to treat them as such since the claimants had given prior notice to the defendants that the documents were to be scanned and uploaded into an e-disclosure platform.