Marine Rescue Technologies v Burchill – breach of unless order for disclosure where no explanation given for failure to search individual’s laptop [2007] EWHC 1976 (Ch)

Where the claimants failed to comply with an unless order that they provide standard disclosure, the claim was automatically struck out (see Marcan Shipping (London) Ltd v Kefalas). The failure as a matter of form was the fact that the list of documents served within time did not contain a disclosure statement. The claimant company applied to reinstate the claim. The company was run by Mr and Mrs Marshall and it was accepted that documents under the power, possession and control of the Marshalls were to be treated as under the power, possession and control of the claimant company. The search for documents only covered the company’s business premises and not the Marshalls’ home despite the fact that Mr Marshall regularly worked from home on his laptop. The court refused to reinstate the claim because there had been a complete failure to search his home, laptop, back-up tapes and email servers and no explanation of why to do so would be unreasonable.

Comment: whilst reported as a decision about unless orders, in many ways it is of more interest because of the light it sheds upon the complexities of disclosure in the electronic age. Various points should be noted. Firstly, a list of documents must be served on the official form and it must contain a disclosure statement. Secondly when it comes to edisclosure and additional sites, it is not good enough to allege disproportionality as a reason for limiting the search. It is necessary to explain why the search is unnecessary eg because only irrelevant material will be found or that it would be unreasonable and why. However, a reasonable search does not mean that every document from a source must be read if it is clear from the nature of the file that its contents are irrelevant. The correct approach is to identify the files which have not been searched. A failure to engage with the requirements of the list of documents will lead to sanctions.