Master orders explanation of deletion of platform prior to disclosure and considers ordering response to a notice to admit
Following disclosure, the Claimants sought the following orders from the court: (a) an order requiring the Defendants to explain why a platform set up to share information between the Defendants was deleted about a year before disclosure took place; (b) an order requiring the Defendants to respond to a notice of admission served by the Claimants; and (c) an order explaining which attachments disclosed were merely contextual and which fell within the standard disclosure test.
Master Marsh agreed to make the first order because the court needed to know whether a serious error had occurred and because "[he] would have expected the evidence that relates to the destruction of a platform (which potentially contained disclosable material) to have been explained not second-hand by a solicitor on instructions, but by a person who has first-hand knowledge of the events and who can say that he or she, and the relevant entities, were unaware of the need to preserve the platform".
In relation to the second order sought, Master Marsh noted that "A notice to admit facts is a convenient procedural device and has the potential to save cost because a party need not go to the expense of proving uncontroversial detail. The rule, however, contains no sanction for a refusal to agree facts. It would not be common for the court to seek to apply any sanction to the refusal to admit facts other than a costs sanction after the event under CPR 42". Therefore, while the court had a discretion to make the order sought, it would not be exercised on the facts.
Unusually in this case, there had been no agreement between the parties as to whether complete families of documents, or only parent documents, would be disclosed (unless children of that parent document were also within the standard disclosure test). Accordingly, when disclosure was made, the Claimants were unable to discern which documents fell strictly within the standard disclosure test and, by contrast, which documents were merely provided for the purposes of context. In the circumstances, Master Marsh made the order requiring an explanation to be provided.
This case demonstrates the importance of document preservation, how dimly the court will view any failure in this regard and why the parties' lawyers must invest time in accurately and comprehensively defining a protocol for disclosure before it is given.
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