The rise in the use of electronically stored information means cases involving deleted or manipulated documents have needed to be addressed. Joseph Carney reports
The ease with which electronic documents can now be created, manipulated or destroyed means that cases where documents have been destroyed, suppressed, altered or falsified are coming before the courts with increasing frequency.
In Bilta (UK) Ltd v Nazir (2010) a defendant sought a stay of proceedings on the basis of an arbitration agreement alleged to have been attached to an email. No copies of the agreement or the email could be found.
The court had to consider an application to strike out the stay application. The ground relied on was that the deletion of emails and the wiping of a hard drive meant there could be no fair determination of the issue because the body of emails sent in the relevant period could not be reproduced.
Where emails have been routinely destroyed prior to the commencement of proceedings the court has applied the principle that it would only limit a party’s further participation in the proceedings where that destruction has amounted to an attempt to pervert the course of justice. An example of such a case was Douglas v Hello (No 3) (2003), where there was no evidence of such an attempt.
Where proceedings have been commenced a different principle applies. Solicitors have a duty to advise their clients promptly after the issue of the claim form of the importance of not destroying documents that might by any possibility be disclosed.
If documents are then destroyed, the court will limit a party’s further participation “only if his conduct has amounted to an abuse of the process of the court which would render any further proceedings unsatisfactory and prevent the court from doing justice”, according to Lord Justice Chadwick in Arrow Nominees Inc v Blackledge (2002).
Accordingly, the responsible party must first have acted with the object of preventing a fair trial. Second, that conduct must have jeopardised the fairness of a trial.
In Bilta the court found that the relevant documents had not been destroyed with the object of preventing a fair trial and the application therefore failed.
A fair trial may not be possible because it is not clear what other documents have been destroyed or remain concealed, or where evidence likely to be damaging has been destroyed. An extreme example of the latter occurred in Raja v van Hoogstraaten (2006), where the defence to a claim based on an oral agreement was struck out because the defendant had ordered the killing of the claimant.
Alternatively, the investigation into what documents have been destroyed or falsified might so overtake the investigation of the real issues that no fair trial would be possible. A fair trial in this sense means a trial conducted without an undue expenditure of time and money on a collateral issue. It was on this basis that the Court of Appeal struck out the claim of a petitioner who had created false documents and diary entries in Arrow Nominees.
If the issue is to be tried and a document has been destroyed deliberately, “the strongest possible presumption arises that if it had been produced it would have told against” the destroyer, according to the principle set out in the 1916 Ophelia case.
Furthermore, where documents are destroyed deliberately or altered it is arguable that a more general inference can be drawn that the party disbelieves their own case – see, for example, R v Watt (1905).
No such inference can, of course, generally be drawn where documents have been deleted in the ordinary course of business and no proceedings are anticipated.
However, in the Australian case of Seven Network Ltd v News Ltd (2007) the court had to consider the evidence of a solicitor employed by News Ltd. The company’s policy was that all centrally stored emails should be deleted after three days. The solicitor furthermore permanently deleted emails every fortnight from his own hard drive. He admitted the reason for this was that people in the future would know as little as possible about what he had been doing from documentary records.
In those circumstances the trial judge determined that if the evidence as a whole was consistent with a particular inference relating to the solicitor’s conduct or intentions, that inference would be more easily drawn by reason of the absence of contemporaneous internal news documentation, cautioning that “care must be taken to ensure that cynical business practices are not rewarded by forensic advantages”.
Joseph Carney is a barrister at 3 Stone Buildings