HT-2022-000043 - [2024] EWHC 3180 (TCC)

The Parties are agreed that I should apply the principles in Mitchell v News Group Newspapers and Denton v TH White Ltd as explained by Richards LJ in Walsham Chalet Park Ltd v Tallington Lakes (paragraph 85 of Ms Hannaford’s skeleton argument set out at paragraph [33] above and paragraph 38 of Mr Bowsher’s skeleton argument).

It is the Defendant’s case that the Claimants were in breach of the orders of Waksman J. and Mr Coppel as well as being in breach of general obligations as to preservation of documents.

I am not persuaded that the Claimants were in breach of any obligation to preserve documents. This case is developed at paragraphs 55 to 62 of Mr Bowsher’s skeleton argument.

The obligation to preserve documents in the possession of a third party is to be found in paragraph 4.2 (3) of PD 57AD and is an “obligation to take reasonable steps so that agents or third parties who may hold documents do not delete or destroy documents that may be relevant to an issue in the proceedings.”

What the Defendant seems to me to be suggesting is not that documents should have been, but were not, preserved in particular by Boson, but rather that the Claimants should have taken steps to get Boson’s documentation into their physical possession – but that seems to me to go further than required by PD 57AD.

There is at present (and probably will never be) any evidence that Boson has failed to preserve any relevant documentation. The difficulty seems to me rather that Boson is now unwilling to co-operate, as I explain below. Accordingly, I do not accept that the Defendant has shown that the Claimants were in breach of any duty to preserve documents.

Were the Claimants in breach of one or other or both of the Orders relied upon?

It seems to me that the central issue is the effect of the Order of Mr. Coppel.

He came to a clear decision that for the purposes of disclosure obligations under Practice Direction 57AD, Boson’s documents were within the control of the Claimants. I have set out his reasoning at length above.

The Claimants’ position is that they were not in breach of Waksman J.’s order and that they have sought to comply with Mr Coppel’s order.

In my judgment the effect of Mr Coppel’s decision was to answer an issue raised between the Parties as to the effect of Waksman J.’s order, namely did the Claimants have control over Boson’s documents so that the requirements in his order extend to require the Claimants to disclose Boson documents? (The same issue arose in respect of MP Bio’s documents).

The effect of Mr Coppel’s judgment was to resolve that issue in the Defendant’s favour. Thus it was resolved against the Claimants that documents in the physical possession (or under the control) of Boson should be disclosed by the Claimants.

That decision is binding upon me and the Parties and the Claimants cannot go behind it.

The simple fact is that the Claimants have not carried out a PD 57AD disclosure exercise in respect of documents held by Boson.

Accordingly, I am required to turn to the principles set out in Denton and Mitchell.