Barrowfen Properties Ltd v Patel & Ors (Judgment 3)

An interlocutory order for further disclosure, including inspection of a witness’s laptop and deleted emails, should be made only where it is proportionate and likely to produce material relevant to the issues or outcome. The court may refuse such relief where the practical burden is substantial, the further search is unlikely to affect the evidential or substantive determination, and the application seeks relief outside the formal notice after the original questions have been answered. Concerns about disclosure quality may be addressed at final judgment without requiring further investigation during a heavy trial where that investigation is unlikely to make a material difference.

The claimant brought proceedings in which disclosure by one of its principal witnesses had been questioned during the trial. The second defendant applied for access to the witness’s email accounts and laptop, further explanations from the claimant’s solicitors, and indemnity costs. The formal questions raised by the application were answered before the hearing, but the defendant additionally sought inspection of the laptop to determine whether deleted emails could be recovered and disclosed.

The central issue was whether that further investigation was proportionate and justified at that stage of the trial.

1. The application was refused in substance. The court declined to order production and inspection of the witness’s laptop or any further disclosure investigation at that stage. The question of costs was reserved until final judgment.
2. Further disclosure relief must be proportionate. The court considered that inspection in Singapore, recovery of deleted material, possible further disclosure, and recalling the witness during the second week of a heavily contested trial would impose a very significant burden.
3. The proposed search was also unlikely to produce relevant material which would justify recalling the witness or materially affect the proceedings. The court had sufficient evidence to assess the competing explanations concerning the disclosure failures. It was inappropriate to determine the witness’s credibility finally before all the evidence had been heard.
4. The fact that the relief sought fell outside the application notice was not, by itself, sufficient reason to refuse it, particularly because the issue had arisen during cross-examination. However, the claimant and its solicitors had answered the questions forming the subject of the formal application and had made every effort to address the criticisms.
5. The explanation for two blank documents was satisfactory. They were HTML files attached to emails, disclosed because they fell within the keyword searches and were technically within the disclosure order. No further written confirmation was required.