Dangers of disclosure: the reasonable search
22nd July, 2015
Laura Turner
The stage of disclosure in the litigation process requires each party to present and list all documents relevant to the issues in dispute. Key to this stage is the need for each party to undertake a reasonable and proportionate search for all relevant documentation. The recent case of Smailes v McNally [2015] EWHC 1755 has highlighted, yet again, the pitfalls of the disclosure process. Laura Turner of Genus Law, highlights the flaws in the process and considers what you can do to keep your house in order, should litigation arise.
Full disclosure?
The recent case centred on whether the applicant had complied with their disclosure obligations having used an e-disclosure provider to scan and upload documents onto a review platform. Once uploaded, the documents were then subjected to Optical Character Recognition software to convert the scanned images into readable documents. The applicants subsequent list of documents was then served in purported compliance with an unless order.
It wasn’t until later inspection that it became evident the documents were not appropriate to be read by the software. The documents were handwritten, faded and worn – as a result the software had mistranslated or deleted large areas of text. It further became apparent that documents which were not in dispute had been omitted from the list which were in the applicant’s possession.
The application for relief from sanctions was dismissed and the claim was subsequently struck out for failure to conduct a reasonable search in breach of the unless order.
Highlighting the defects
When considering his decision, HHJ Pelling found the most serious and significant failing was the Optical Character Recognition software. However even more profound in the context of an application for relief from sanction, was the failure of the applicants to provide any explanation or proposal as to the extent of the problem or how to deal with the defects. The judge highlighted that, this problem was easily rectifiable by service of a supplemental list of documents – something which the applicant’s solicitors failed to do or even attempt to suggest despite being an “experienced and well resourced firm of solicitors with substantial experience of major litigation”.
This decision highlights the practical problems that can arise when undertaking an extensive disclosure exercise where documents are scanned into an electronic database. In the judge’s words, the mechanism which the parties had devised had not worked correctly, and this meant that the applicants had not complied with their obligation to undertake a reasonable search.
Getting your house in order
Whilst many of us are in eternal pursuit of the paperless office, this case highlights the stark context in which the courts are granting such relief from sanctions post Jackson. It is therefore imperative that your house is in order before considering embarking on litigation. In particular, we would recommend you:
1- Do not destroy documents – preserve your documents even before litigation has commenced
2- Do not create documents – it is very important that you do not create any new documents that you might have to disclose that could damage your case
3- Conduct a broad search – for example, a document could be in an employee’s email inbox, with your accountant or even at an off site archiving facility
4- Ask for advice – if you are unsure of whether you have to disclose a document seek legal advice
At Genus Law we always recommend a detailed assessment of your evidence be carried out before litigation. Provided that you have preserved the documents, we can help decide what you are legally obliged to disclose should you wish to continue your case through the court.
If you have any questions about the impact of this recent case, or would like to discuss any matter in more detail, please contact Genus Law on 0113 320 4540 or [email protected]