Barrister Gordon Exall is once again my source for a judgment about disclosure in the High Court of England and Wales. The case is Ayannuga & Ors v One Shot Products Ltd
and the judgment was delivered on 1 November following an application for orders against the defendants relating to their disclosure. Gordon Exall’s blog post is here.
There is a dry and understated comment near the top of Gordon’s post – “There were some mishaps with the defendant’s disclosure process”. The interest (for us as well as for the court) is that documents were scanned and shredded shortly after the defendants were put on notice of a claim which included death and serious injury. The judgment is concerned partly with directing efforts to find out what happened, and partly to the steps to be taken as a technical and investigative matter to ensure that any surviving relevant documents were secured.
I will not summarise Gordon Exall’s post which, as usual, extracts the bits which matter – matter, that is, to anyone on the receiving end of a potential claim and to those advising them.
There is one section, however, which is worth repeating. In paragraph 12, the judge says this (the italics are mine):
The question arises what the defendant was doing shredding documentation in 2016 when they had been put on notice of a claim in 2015. That question remains to be answered, but I note that although it has been asserted that Mr Mounce and Mr Sutton, who jointly are the moving forces behind the defendant company, are not sophisticated when it comes to information technology and computers, they were experienced when it comes to facing claims of various sorts… and therefore can be expected to have been advised many times previously of the important obligation of retaining documentation relevant to litigation.
The standard expected of parties applies to all. The judicial test, however, is more nuanced – these people have been here before, several times, and must know the rules. The judge’s nose is twitching, as it were, and anything said by or on behalf of the defendants will be tested more carefully because they know what is expected of them.