Cable & Wireless has beaten off Digicel’s claim that its entry into the Caribbean telecoms market was deliberately and wrongfully blocked by Cable & Wireless.

According to an article in the Guardian, Cable & Wireless Communications wins legal war with Digicel (thanks to Dominic Regan for pointing me to this) Digicel succeeded on only one head of claim, with damages assessed at just £2. The newspaper also reports that the costs bill to be picked up by Digicel will be £25 million. I am never clear where newspapers get these figures from, but it is reasonable to suppose that the number will be a large one.

For those of us interested in electronic disclosure, the final outcome of the case is of less significance than Mr Justice Morgan’s judgment of October 2008 in relation to Digicel’s applications for specific disclosure. The judgment records that £2 million had been spent by Cable & Wireless before this before the judge ordered that existing searches be redone using his choice of keywords and that Cable & Wireless should immediately have discussions with Digicel about giving disclosure of 800 backup tapes. Whether or not that figure is right, there must have been considerable wasted costs to say nothing of time.

It seems unlikely that the rest of us will ever find out whether anything new and useful came to light as a result of the disclosure orders. Those who would like to believe that disclosure of electronic material is an expensive waste of time would love to discover that nothing of value emerged as a result of the judgment and the extra work. Conversely, those who believe in the importance of uncovering electronic information would be pleased to discover that the case eventually turned on something flushed out as a result of the judgment – even if, as now appears, whatever emerged did not win the day for the applicant.

In truth, of course, the actual outcome of the orders is irrelevant to the general picture, not least because the facts of one case have no bearing on another. Disclosure must be given properly, and in accordance with the rules. That does not mean, as Mr Justice Morgan was at pains to point out, that the parties and the court must look under every stone. The aim should be to try and work out, by co-operation between the parties, and with the informed intervention of the judge, what it is helpful to have as evidence. The rules so carefully analysed in the judgment, if properly applied, provide a framework within which the parties and the court can decide what is right. Nothing in that judgment implies that the process is more important than the objective, and Digicel can be used to cut down excessive disclosure as well as to widen its scope.

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