Able & Wired

One of the most popular litigation double acts act will be back in court at the end of the month. Slaughter & May has instructed One Essex Court’s Lord Grabiner QC to defend a $100m claim against its client Cable & Wireless (C&W).

The last high-profile case the firm and the QC paired up on was Northern Rock when Grabiner, instructed by Slaughters partner Elizabeth Barrett, successfully argued that the Government has no obligation to compensate former shareholders in the bank (13 February).

C&W will be hoping for a repeat of that success. The case is scheduled to run over 12 weeks and has already sparked a flurry of comment from the US after the claimant, Digicel, managed to persuade the court during the interlocutory hearing that the defendant’s disclosure exercise wasn’t up to scratch.

Digicel, which is being represented by Fountain Court’s Stephen Rubin QC, instructed by Jones Day partner Nick Cotter, is suing C&W for allegedly engaging in illegal and uncompetitive practices which, it claims, delayed Digicel’s expansion into the Caribbean markets. Digicel claims that those delays cost it hundreds of millions of dollars in lost revenue and now it wants some of that money back.

Digicel claims that between 2002 and 2006, C&W refused to okay connections between different networks in various Caribbean countries including Barbados and the Cayman Isles. It is also alleged that, where connections had already been made, C&W severed it and charged unreasonable termination fees.

Digicel also alleges that a number of C&W companies conspired together with the aim of harming Digicel.

The defendants have squarely rejected the claims as a ‘spoiling tactic’ which has no foundation. But then the sides have a history of disagreeing.

In October last year, all parties gathered in the High Court to discuss the extent of C&W’s disclosure. The civil procedure rules state (CPR) that electronic documents submitted to the court as evidence must be dealt with proportionately and in a cost effective manner. In most cases both parties would agree upon which documentation is needed for the case to be discussed and the issues to be decided.

In this instance Digicel called in Mr Justice Morgan to force C&W to extend its disclosure exercise, because, it claimed, the defence had failed to go far enough.

The defendants spent £2m on disclosure, gathering 1.1 million electronically-stored documents, including 85 email accounts. After eliminating irrelevant sub-folders and duplicates as well as 10 keyword searches and a lawyer review, C&W disclosed 5,000 documents.

Digicel argued that the keyword searches had not been agreed with the claimant as provided for in the CPR. It requested a further 19 keyword searches from the court.

In a case which spanned seven countries and is alleged to have involved several companies co conspiring, getting the documentation right is clearly a challenge. While Morgan J noted that the claimants had gone much further than the defendant in its disclosure, he added that the work done by C&W was not inadequate.

That said, he agreed with the claimant’s view that C&W had not gone far enough and ordered the company’s legal team to do a further eight keyname searches. Morgan J also asked C&W to carry out searches for other email accounts, located somewhere on approximately 800 back up tapes.

Failure to carry out proper disclosure exercises had resulted in a lot of expense for the client while the legal team racked up the chargeable hours.

No doubt this will become an important point when quantum comes to be decided after the judgment is handed down.

C&W will be relying on Slaughters partners Sarah Lee and Jonathan Cotton -not to mention Grabiner – to put it back on an equal footing when the case gets to court in two weeks’ time.