CC-2023-000006 - [2025] EWHC 1439 (Comm)

On 5 March 2024, HHJ Keyser KC adjourned the Contempt Application, but he also made an order requiring each Defendant, by 12 March 2024, to provide a witness statement (a) identifying their relevant devices and email addresses/telephone numbers; and (b) explaining the nature of the search that they had carried out. Belatedly, on 21 March 2024, each Defendant provided a witness statement in which s/he stated that s/he had no disclosable documents, but offering to provide his/her devices to an independent forensic IT expert to be searched for documents that fell within the terms of the Disclosure Order.

Meanwhile, on 13 March 2024, the Claimant issued an Application Notice seeking delivery up of the Defendants’ devices. The Contempt Application was listed for hearing on 31 July 2024, but was subsequently adjourned due to the ill-health of the First Defendant.

The application for delivery up came before Griffiths J on 22 March 2024. He ordered a timetable whereby:

As a result, on 17 April 2024, the Defendants’ solicitors confirmed to the Claimant’s solicitors that they had reviewed the Extracted Data (which comprised 5,988 documents) and provided 392 that fell to be disclosed under the Disclosure Order to the Claimant’s solicitors.

The Claimant remained unsatisfied that there had been full compliance with the terms of the Disclosure Order by the Defendants. One area of challenge was the extent to which documents had been properly withheld based on legal professional privilege. On 2 May 2024, it issued a further Application Notice seeking, amongst other things, an order that an independent barrister should undertake a review of the documents identified from the target period (“the Further Disclosure Application”).

On 3 July 2024, the Claimant’s solicitors wrote an open letter to the Defendants’ solicitors (“the 3 July Offer”) which included the following:

“4.

Following your firm’s review of those documents for relevance and privilege, your clients disclosed only 392 documents to CCFC. Your rationale for the limited volume (sic) of documents disclosed was set out in a spreadsheet which, we have argued, contains many inaccuracies, and wrongly applied the principle of legal privilege.

5.

CCFC now has no choice but to challenge your firm’s review of those documents by way of a further application to court, which will need to be decided before the Committal hearing listed on 31 July.

6.

Mindful of the time and costs incurred by the parties to date, and eager to avoid another court application, our client wishes to put forward two alternative offers settlement for your clients’ consideration. For the avoidance of doubt, the offers are made on an open basis:

6.1.

Your clients will disclose to this firm the 5,988 documents found on their devices and accounts. We will examine those documents and will return to you those that do not fall within the scope of the disclosure Order. We will not in any way disclose to our client the contents of any returned document. In exchange our client will (i) forego its costs; (ii) reiterate your clients’ release from liability; and (iii) consider your clients’ breaches of court orders to be purged.

6.2.

As an alternative, our client is prepared not to issue a further application to court challenging IPS’ review of documents if your clients consent for Celine Jones of this office to attend IPS Law’s offices to review under the supervision of IPS Law the 5,988 documents found on your clients’ devices and accounts. The purpose of this exercise would be for our firms to narrow down the issues in dispute between the parties as to what documents fell or not to be disclosed. Any documents in dispute would be referred to an independent Counsel instructed by both parties for final determination. In exchange our client would (i) forego its costs; (ii) reiterate your clients’ release from liability; and (iii) consider your clients’ breaches of court orders to be purged.

7.

Given the committal hearing is 4 weeks away, these alternative offers are open for acceptance until 3pm on Friday 5 July 2024.

8.

If your clients do not accept either of these offers, CCFC will revive its application for an independent review of the 5,988 documents found on your clients’ devices and accounts and seek to recover its costs from your clients. Our client’s position in relation to the Committal application remains reserved in the meantime”.

The Further Disclosure Application was heard on 31 July 2024. It was dismissed by Griffiths J ([2024] EWHC 2953 (KB)). The Judge considered 18 specific documents that were challenged by the Claimant. Of these, only three raised unresolved questions. He emphasised that the Defendants’ solicitors, as officers of the Court, were presumed to act ethically. Mistakes in a disclosure exercise did not automatically suggest bad faith or incompetence. The request for an independent barrister to review the disclosure provided was found to be disproportionate. The Court made a limited order requiring the Defendants’ solicitors to reconsider the 18 documents afresh, disclose any that were found to be within the scope of the Disclosure Order, and file a witness statement confirming the outcome of this review.

In compliance with Griffiths J’s order, the Defendants’ solicitor, Christopher Farnell, filed a witness statement, dated 12 August 2024, confirming that he had carried out a review of the 18 documents and that he was satisfied that none fell to be disclosed under the Disclosure Order.

There has been no challenge to Griffiths J’s decision or order. The Claimant has not sought to challenge the disclosure provided by the Defendants under the Disclosure Order by any further application to the Court.

The Claimant has argued that, in his decision, Griffiths J had not found that the Defendants had complied with the Disclosure Order. I suppose, strictly, that is correct. But that point has no real substance. The Disclosure Order required the Defendants to disclose documents that fell within the identified categories. Eventually they disclosed 392 documents. The Claimant was not satisfied that this was the full extent of the documents to which it was entitled under the Disclosure Order and so made the Further Disclosure Application. The Claimant could reasonably have been expected – and, indeed, was probably required – to bring all complaints about compliance with the Disclosure Order in a single application. Absent a change in circumstances, the Court does not usually permit a party to have several bites at the cherry.

On 2 September 2024, the Defendants’ solicitors sent an email to the Claimant’s solicitors asking whether the Claimant was going to withdraw the Contempt Application.

On 4 September 2024, the Claimant’s solicitors confirmed that the Claimant would not withdraw the contempt application. The letter: (1) raised a point on Mr Farnell’s witness statement, and generally reserved the Claimant’s position on its contents; (2) sought payment of outstanding costs of £6,078 awarded to the Claimant from the Disclosure Application; and (3) sought the listing of the Contempt Application before the end of the year. Despite the reservation of position, the Claimant has since not returned to or sought to challenge Mr Farnell’s witness statement.