[2025] EWHC 2759 (Ch)

The original explanation given to the Court of Appeal by Mr Timol in his sworn witness evidence, that Mr Timol suspected that it arose from a failure to sync the e-mail accounts that Mr Timol searched during the liability trial with those accounts on the cloud-based server, was now accepted by Mr Timol to be incorrect.

Prior to giving that explanation to the Court of Appeal, Mr Timol had stated twice in his 14 November 2022 disclosure certificate for the original liability trial that he had searched the cloud server, which in turn clashed with the explanation he gave to the Court of Appeal.

Mr Timol’s explanation in his May 2025 witness statement for the present trial, that he must have deleted the relevant e-mails as part of his more general practice until May 2022 of deleting e-mails that he did not consider of significant continuing relevance, was implausible, because, among other things, (a) this explanation had not been offered before May 2025, despite its importance to- for example- the Court of Appeal proceedings, (b) it clashed with Mr Timol’s assertion that he had not read the e-mail chain at the end of October 2014 mentioning Mr Corrigan’s complaint, which was one of the e-mails Mr Timol contended that he had deleted, and (c) there had been no documentary evidence provided for a deletion process.

The Defendants’ preparation of witness evidence and conduct of the disclosure exercise for the liability trial were very poor. The statements had to be re-amended for non-compliance with PD57AC, contained a number of common passages, and were often lacking in detail. The explanation given on behalf of Mr Johnson when disclosing the further documents was that he had been allowed by his previous solicitors to determine relevance himself and that had led to the documents not being disclosed by him.

Mr Johnson and Mr Slattery did not disclose these documents either.

Therefore, that suggests to me a generally defective process the first time round.

This leaves the puzzle of why Mr Timol did not have the documents on his system when a further search was carried out in April 2025, as set out in his latest witness statement. I understand from his evidence that he no longer considers that the explanation given in his evidence to the Court of Appeal, namely that he suspected the downloaded e-mails that he searched had not synced with the cloud-based server, is a correct one. Instead he considers that it is likely the result of having deleted the e-mails in the past prior to the contemplated litigation (although he suggests that his general practice of deleting certain e-mails on first reading them would have continued up to May 2022, just over six months before the liability trial). Given that Mr Timol’s role was on the commercial side and there would have been no obvious need for him to retain detailed e-mails on Nemaura of this sort in order to deal with Nemaura going forward in 2014 and 2015, I do not consider it implausible that he deleted it. He was a very senior figure in an organisation that I understand employed around 65 people at its peak in around 2013/4, so would- as he said- have received a significant body of e-mails, and I accept his explanation that he would deleted a significant number of them in order to focus on the ones that he considered he would need to return to in the future. That approach to deletion was probably not particularly organised, but I bear in mind that if matters of importance arose in the future those with less senior roles would be likely to draw any key earlier dialogues to his attention if he needed to know them. I did not gain the impression that he was a man who was likely to spend much of his time looking back over old e-mails and therefore felt a need to retain them for that purpose.

Therefore, choosing been that explanation and the possibility that he deliberately destroyed evidence, I consider on balance the former more likely.

I also consider that if he had deliberately destroyed them as part of a plan to cover up his actions, he would have been unlikely to change his explanation from his witness statement for the Court of Appeal to his current one because one would have expected him to have a ready answer to why those e-mails were not disclosed.

I also take into account that the material disclosed by the Defendants in November 2022 did include significant material from 2014, and I consider it unlikely that they would have filleted out information relating to Mr Timol. I was told that Mr Slattery, for example, has gone bankrupt as a result of the judgment against him, so I cannot see that he would have a significant incentive to shield Mr Timol from liability in such a way.