One of the issues that we regularly come across as claimant clinical negligence and personal injury solicitors is missing documentation. Ultimately, while witness evidence is important in a case, documentary evidence is often more compelling to a court. A claimant has to prove their case, and the starting point is often documentation.
In a clinical negligence case, documentation will be medical notes and correspondence; in an accident at work, it might be an accident book and risk assessments. In other cases, the key evidence might be photographs, telephone records, evidence of previous similar incidents, minutes of meetings, or text messages. The earlier we are instructed, the better chance we have of being able to collate the evidence needed to assess and, if appropriate, pursue the claim.
However, what happens when a defendant destroys key evidence or denies it exists? Sometimes all we can do is ask for evidence, then accept the explanation as to why it either never existed or does not now exist. It may be the case that missing evidence is more problematic for the defendant than the claimant. In many cases, appropriate records may not have been kept, while in other circumstances a long period of time has passed, and records were destroyed without any knowledge that they would be relevant in later litigation.
However, sometimes, there are indications that a potential defendant has deliberately destroyed key evidence in anticipation or knowledge of a likely claim. The court was asked to look at this scenario in the recent case of Ayannuga & Ors v One Shot Products Ltd, heard recently by Mr Justice Martin Spencer.
This case related to chemical cleaning products supplied by the defendant, One Shot Products. It was alleged that the products manufactured by the defendant were unsafe and had led to the death and injury of persons who had used it - the claimants in this case. The defendant was notified of the potential claim in late 2013 and responded to the claimants’ representatives to advise that the matter had been passed to their insurers.
Proceedings were issued in late 2017. The case was disputed, and by 2021 the matter had reached the disclosure stage in the court timetable. The claimants were seeking disclosure of a range of documentation from the defendant, including seeking to ascertain if there had been other incidents involving the product in question, that the defendant had been aware of prior to the injuries suffered by the claimants in this litigation.
The claimants were advised that no original documentation remained, and that what had existed had either been destroyed or transferred into electronic form. Disclosure of the electronic documents was offered. The claimants’ representatives were concerned that key documentation was missing, and pressed for further information about the hard copy documentation, including what had been destroyed and when. Eventually, it transpired that all of the relevant hard copy documentation had been shredded in 2016.
The issue was not so much that the defendant had moved to electronic storage, but that by the time the documentation was destroyed they were clearly aware of the litigation being pursued and the relevance of this documentation, and thus were under a duty to retain this original documentation for disclosure. In addition, only documentation from 2009 had been transferred to electronic storage – everything pre-dating 2009 had been destroyed in its entirety, and there were concerns that even the post 2009 documentation was not complete.
The claimants’ solicitors raised further questions about how and when these documents had been destroyed, and their relevance. In the absence of any real response, they issued an application to determine what had been destroyed, and to seek orders that the defendant cooperate in exploring further avenues to identify and locate some of the missing documentation.
Some of the issues that the judge Mr Justice Spencer had to consider were:
- Who should provide witness evidence? The defendant had opposed a statement about the documentation from a specific individual, but the judge ruled in favour of the claimants.
- What information the defendant could be compelled to provide about the origins of the documentation? Mr Justice Spencer ruled that in light of the documentation being destroyed, this information was appropriate so that the claimants could make further enquires and see if any other copies existed.
- Should further searches be carried out for electronic documents? Here the judge ordered that the defendants had to provide details of what had been scanned, and that the claimants were permitted to have their forensic IT expert access the defendant’s computer and hard drive to see if any further relevant documentation could be located and identify what may have been uploaded and then deleted.
- Whether other information should be provided by the defendants’ insurers, relevant to other claims and the defendants being on notice of an issue with the product in question. Mr Justice Spencer ordered that such enquiries were appropriate, and the insurers should cooperate.
It is not known what further information came to light because of these enquiries but some key points to take from this case are:
- The court will not look favourably on a defendant who is on notice of a claim and destroys original documentation that they know, or ought to know, is relevant to that claim.
- A defendant who does so may end up being ordered to take steps to provide access to information that they would never normally have to do, and that a court is likely to be amenable to allowing the claimant to seek and access information that would not normally be permitted.
- Early notification of claims provides a claimant with some protection against documents being destroyed, accidentally or otherwise.
- Claimants should consider early on what documentation is relevant and make appropriate requests.
- Where a defendant does not provide appropriate disclosure and does not have a satisfactory explanation as to why it cannot meet its disclosure obligations, claimants should consider what other ways there may be to access that information, and the benefits of applying to the court for permission to pursue those routes if the defendant will not cooperate.