Eurasian Natural Resources Corporation Limited v The Director of the Serious Fraud Office & Ors

Under Practice Direction 57AD, destruction of a device engages the obligation to explain missing disclosable documents where there is a likelihood or risk that relevant material was held on it. The explanation must identify the relevant document or classes of documents with reasonable precision; stating only that the device is unavailable is insufficient.

Further disclosure orders must be necessary, reasonable and proportionate to the just disposal of the proceedings. They cannot be used merely to obtain information for the purpose of deciding whether to make later applications. Searches should be focused on the likely sources and categories of relevant material. Full forensic imaging is unjustified where the target is narrow and a proportionate manual search will address the identified risk.

The claimant sought further disclosure and explanations from the Serious Fraud Office and an individual defendant concerning work and personal devices, destroyed mobile-phone data, searches for documents relating to media contacts, and the identity and treatment of custodians. The applications arose in ongoing commercial litigation concerning the SFO’s investigation of the claimant.

The court considered the scope of paragraphs 12, 17 and 18 of Practice Direction 57AD, including when explanations are required for documents that cannot be produced, when further orders may be made after an existing disclosure order, and whether proposed searches were reasonable and proportionate.

1. Destroyed mobile device. There was some risk that the SFO director’s work mobile contained disclosable documents. Paragraph 12.3 of Practice Direction 57AD was therefore engaged. The existing description was too broad because it did not identify with reasonable precision the classes of documents expected to have been held on the device. A more precise explanation was required, but the claimant was not entitled to the prescriptive witness statement and detailed communications account sought.
2. Other work mobiles. A custodian-by-custodian explanation for all work-issued devices was overbroad and disproportionate. The appropriate focus was on the more central C and E custodians, where there was sufficient clarity about device use and surviving data. Further enquiries and explanations were required only to that extent.
3. Variation of an existing order. Paragraph 18.1 was not a vehicle for obtaining information to assess compliance with an earlier order or to facilitate further applications. If the claimant sought additional disclosure beyond the completed order, it had to apply for further disclosure against the relevant party or individuals. The requested order was not necessary, reasonable or proportionate to the just disposal of the proceedings.
4. Surviving mobile data. A focused manual re-search, including additional journalists and relevant internal communications, was sufficient. The target was small, emails had already been searched, and the remaining issue concerned a limited number of applications or data sources. Full forensic imaging was not justified.
5. Meetings with journalists and known adverse documents. Speculation, chronological proximity and the absence of surviving notes did not establish a basis for wider disclosure or an adverse inference. Reasonable efforts to locate notebooks of identifiable additional participants were sufficient. A formal witness statement was unnecessary.
6. Form of explanations and orders. A witness statement or disclosure-statement format was appropriate for explanations equivalent to paragraph 12.3. Other explanations did not generally require a formal witness statement. The applications were granted only in the limited respects identified, with compliance required by 31 May 2024.