Fiddes v Channel 4 TV Corporation & Anor

In an application for disclosure of deleted electronic documents, the court must apply the factors in Civil Procedure Rules 1998, rule 31.7, and paragraph 2A of the Part 31 Practice Direction to the circumstances of the particular case. There is no blanket rule either requiring or excluding searches of back-up systems.

The court should balance the likely significance and relevance of the documents against accessibility, likelihood and cost of retrieval, the cost of disclosure, and the complexity of the proceedings. A case-management judge’s conclusion on that evaluative question is discretionary. The appellate court should not interfere merely because it might have reached a different conclusion.

The claimant brought a libel action concerning a television programme about the Jackson family. He alleged that the defendants had manipulated or selectively edited underlying footage and sought to establish, among other matters, the third defendant’s state of mind.

The second defendant’s disclosure showed that relevant emails had been deleted. Some might be recoverable from approximately three, and possibly up to six, back-up tapes. The claimant applied for an order requiring restoration and searching of those tapes. Tugendhat J refused the application because the claimant had not shown a sufficient likelihood of retrieving an email that was both relevant and significant.

The claimant appealed. The central issues were whether the judge had applied the correct approach to reasonable electronic searches and whether his conclusion justified appellate intervention.

1. Appeal dismissed. Permission to appeal had been granted, but the substantive appeal against the refusal of specific disclosure was dismissed.
2. Lord Justice Pill held that the correct approach was to analyse the particular circumstances under Civil Procedure Rules 1998, rule 31.7, and paragraph 2A of the Part 31 Practice Direction. The extent of electronic disclosure must be decided case by case. A reasonable search should be tailored to the value and significance of its likely product, while seeking a just outcome and limiting costs as far as possible.
3. The relevant factors included the number and complexity of the documents and proceedings, the ease, accessibility and expense of retrieval, the likelihood of locating relevant data, the costs of disclosure and inspection, the risk of alteration during recovery, and the significance of documents likely to be found. Searches of back-up tapes were not required in every case, but could be proportionate in an appropriate libel action.
4. The court accepted that contemporaneous documents may be particularly important where a case turns on a party’s state of mind. However, the disclosed material, including the amended working diary and more than 500 emails already recovered, did not provide a sufficient basis for believing that the deleted emails were likely to contain evidence of malice or other material of significance. The changed explanation for deletion did not alter that assessment.
5. The appeal concerned a discretionary case-management decision. Applying G v G [1985] 1 WLR 647, the appellate court could not interfere merely because another judge might have reached a different conclusion. Tugendhat J had considered the relevant factors, was entitled to give substantial weight to the likelihood and significance of the material sought, and had not applied an impermissibly high threshold.
6. Lady Justice Smith agreed. Lord Justice Wilson likewise agreed, observing that he might have reached a different first-instance conclusion but that the decision was not shown to be plainly wrong.

• Court of Appeal (Civil Division): [2010] EWCA Civ 516 dismissed the appeal from the refusal of specific disclosure.
• High Court of Justice, Queen’s Bench Division: Tugendhat J refused the application for restoration and searching of specified back-up tapes, concluding that there was insufficient likelihood of retrieving an email that was both relevant and significant.