Rybak & Ors v Langbar International Ltd

An unless order requiring delivery and inspection of electronic media encompasses data existing on the relevant hardware when the order was made. Deliberately overwriting that data before delivery constitutes non-compliance, even if the hardware is later handed over.

Where the breach is intentional, irremediable and materially prejudices the opposing party’s ability to obtain a fair determination, the court may refuse relief from the resulting sanction under Civil Procedure Rules 1998 rules 3.8 and 3.9. The administration of justice generally requires deliberate and persistent non-compliance with an appropriate disclosure order to have the stated consequences, save in very exceptional circumstances.

The claimants sought declarations and payment of proceeds arising from the sale of a Monaco apartment following settlement of earlier litigation. Langbar defended the claim and counterclaimed for misrepresentation, breach of an information obligation and sale at an undervalue.

Following repeated disclosure difficulties, orders required the claimants to deliver computers and electronic storage media for inspection. An order dated 20 May 2010 provided that the claim and defence to counterclaim would be struck out unless delivery and inspection occurred by a specified time.

The applications concerned whether the order had been breached and whether the claimants should receive relief from the resulting sanction.

1. Disposition. The claimants breached the unless order. The claim and defence to counterclaim therefore remained struck out, and relief from sanction was refused.
2. The order of 6 May 2010 required delivery of documents contained on the relevant hardware at the date of that order. It also captured later-added data, but did not permit the removal or destruction of data which had existed on the hardware when the order was made. That construction was sensible and consistent with the claimants’ continuing obligation not to destroy disclosable material.
3. The forensic evidence established that the Apple Mac’s “Erase Free Space” function had been used twice on 24 May 2010. Its effect was to overwrite previously deleted files and make them irrecoverable. The court rejected the explanations advanced by Mr Rybak and found that electronic data existing on 6 May 2010 had been deliberately destroyed.
4. Under [2007] 2 WLR 1864, the breach produced the sanction specified in the unless order, subject to relief under Civil Procedure Rules 1998 rules 3.8 and 3.9. Applying the matters in rule 3.9, the order had been appropriate, the breach was intentional, there was no good explanation, the destruction was irremediable, and Langbar was deprived of material which was likely to assist its case.
5. The court applied the guidance in [2009] EWCA Civ 19 that deliberate and persistent non-compliance with orders for information and documents should ordinarily attract the stated sanction, save in very exceptional circumstances. Granting relief would allow the claimants to litigate on material selected by them while withholding potentially adverse evidence. The alternative abuse-of-process ground discussed in [2000] 2 BCLC 167 did not require determination.