[2024] EWHC 1238 (TCC)

In relation to WhatsApp messages the claimants have disclosed a series of WhatsApp messages passing between Mr Singh and Mr Diamond which are in what Mr Esly has rightly described as a muddled or jumbled form with redactions which have previously been adversely commented upon by the court, particularly by Mr Justice Eyre, and which make any reading of those WhatsApp messages impossible or incomprehensible. It is now conceded by Lloyds that they should carry out a further review of the WhatsApp, messages to identify those that are relevant and disclose them with appropriate redactions and potentially without this level of redaction.

The first issue that arises between the parties is who should review the unredacted documents to determine any issues of relevance or confidentiality or privilege. The exercise has been carried out once already apparently by solicitors. The solicitors say that they can properly carry out that review again but given what was produced at the first time I am not satisfied that that is the most useful or appropriate way forward and instead I am going to order what has been proposed by Accor as one of two alternatives, that is that the WhatsApp messages should be reviewed by an independent firm of solicitors, instructed jointly but at Lloyds’ cost, with no previous knowledge of what has been disclosed or not. That exercise should be undertaken to ensure that the WhatsApp messages are properly disclosed.

Mr Blackett has not referred to these submissions orally, because I have not invited him to do so, but in his skeleton argument he sets out at some length the risk of confirmation bias, that is unconscious confirmation bias if the exercise is carried out a further time by the same people who carried it out the first time. He refers to what was said by Mrs Justice Cockerill in Recovery Partners GP Limited v Rukhadze & Others [2021] EWHC 1621 to the effect that, rather than deciding “clean” if there should be a redaction, a solicitor is left deciding whether they should remove a redaction (in that case one suggested by the client) which gives rise of the obvious danger of confirmation bias. All the more so, I would say, if those redactions were made in the first instance by the solicitors and if the choice as to what to disclose was made by the solicitors.

So far as the second issue between the parties is concerned, Lloyds are content to provide a witness statement on a date which I will need to fix providing an explanation of who carried out the searches for the SMS text messages and WhatsApp messages on Mr Singh and Mr Diamond’s mobile phones and how these searches were conducted, but they do not consent to include within that witness statement an explanation of how the document, Text.WhatsApp_RD.RS.PDF was created, that being the jumbled document in PDF form which is what has so far been disclosed.

Mr Bowling says that there is no utility in including that explanation in the witness statement. It will be overtaken by events and further disclosure of the material and the review which I have just ordered to be undertaken by a third party firm of solicitors.

PD 57AD at paragraph 17.1 provides that “Where there has been or may have been a failure adequately to comply with an order for extended disclosure, the court may make such further orders as may be appropriate including an order requiring a party to... (5) make a witness statement explaining any matter relating to disclosure.” That provision in paragraph 17.1 is an inclusionary direction not an exclusionary one and, in any event, it seems to me that the order that is being sought falls within sub paragraph 5, that is the making of a witness statement explaining any matter relating to disclosure.

The question, therefore, is whether it is relevant, useful and/or proportionate to make the order that Accor seek. In my view it is. The manner in which the document was produced and the extent of the redactions that were made may be overtaken by events but it is still material for Accor to know how this patently inadequate document came to be produced and there may be matters arising out of that which are relevant to other issues arising in respect of disclosure. Accordingly, I will make the order as sought in paragraph 3 of the draft order including sub-paragraphs (a), (b) and (c).