Taylor v Van Dutch Marine Holding Ltd & Ors

A disclosure statement must be sufficiently transparent to enable the court and the opposing party to evaluate the adequacy of the search. It must identify the relevant locations and data sources, custodians, document types, search dates, keywords and any documents that have been lost or destroyed. A general reference to cloud storage is insufficient.

Standard disclosure is not confined to documents identified by the opposing party as apparently missing. Documents relevant to factual issues, including meetings and dealings bearing on an alleged conspiracy or agency relationship, may be disclosable even if they also affect credibility. A company’s disclosure obligation includes taking reasonable steps to obtain documents held by current or former officers, agents, advisers and third parties where those documents are within its control.

The claimant sought further disclosure from the fifth to seventh defendants in proceedings concerning alleged agency relationships, undisclosed principals, conspiracy and unjust enrichment. The defendants had provided disclosure lists and witness statements, but the claimant alleged that the searches were inadequately described and failed to address relevant custodians, third parties, date ranges and electronic sources.

The application originally sought an unless order. At the adjourned hearing, the claimant instead pursued a draft order requiring further searches, revised disclosure lists and evidence from officers of the corporate defendants. The central issues were the content of the disclosure statement, the scope of reasonable searches, and the extent of a company’s control over documents held by others.

1. The application was substantially granted. The additional defendants’ lists and witness statements failed to satisfy Civil Procedure Rules 1998, rule 31.6(a), because they did not adequately set out the searches carried out.
2. Disclosure is a transparent process. A compliant disclosure statement must provide enough information to permit the court and the opposing party to assess whether a proper and careful search has been undertaken. This includes the physical or geographical location of hard-copy documents, electronic data sources and cloud-storage providers, account holders and user IDs, relevant third parties, document types, custodians, search date ranges, keywords and the extent to which documents are irretrievable through loss or destruction.
3. The court rejected the submission that further disclosure required the claimant first to identify a missing document or class of documents supporting the conspiracy allegation. Standard disclosure includes documents supporting a party’s case and documents adverse to it. The relevant period for disclosure concerning the nature of the defendants’ relationship extended from 2014 onwards, and disclosure concerning the alleged agency relationship extended back to 1 April 2013.
4. Documents concerning meetings between the relevant defendants in 2014 were not documents going solely to credit. They were relevant to factual issues concerning when and where the parties met and what occurred. The principle in Favor Easy Management v Wu [2011] 1 WLR 1803 therefore did not prevent their disclosure.
5. Documents held by third parties may be within a company’s control where there are practicable means of obtaining them. Documents held by Accendium BV and ICS were prima facie within D7’s control, subject to evidence that they could not practicably be obtained. The duty to give disclosure remained that of the disclosing party, and the disclosure statement had to be signed by the party rather than its solicitor.
6. The defendants were ordered to undertake further searches and provide revised disclosure. The order requiring a revised list containing both versions of the 1 April 2013 agreement was granted. The proposed order requiring identification of documents excluded as unreasonable or disproportionate was not required because no such limitation had been asserted.

First-instance decision. No appellate history was stated in the judgment.