IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
TECHNOLOGY AND CONSTRUCTION COURT
(HIS HONOUR JUDGE RICHARD SEYMOUR QC)
London, WC2A 2LL
B e f o r e :
(Lord Phillips of Worth Matravers)
LORD JUSTICE MAY
LORD JUSTICE JONATHAN PARKER
|VOGON INTERNATIONAL LIMITED||Claimant/Appellant|
|THE SERIOUS FRAUD OFFICE||Defendants/Respondents|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR DURRAN MCCALL (instructed by Messrs Bird and Bird, London, EC4A 1JP) Appeared on behalf of the Respondent
Crown Copyright ©
"The tapes that contained MS Exchange Server Backup will have MS Exchange Server files in it. We will restore these files for you. However if you need the individual PST files recovering from these files it will involve recreating the Exchange Server and extracting the appropriate files. We estimate an initial set-up charge of around £2,000 and approximately £500 per backup set process. If you would like a quotation for this work we are more than happy to provide one."
There were further descriptions of possible work in subsequent e-mails, including those dated 14 and 16 August 2001.
"Further to our e-mail correspondence, we are able to quote for the processing of the Microsoft Exchange Databases from the tapes that are in bags 377, 384 and 387.
The processing requires that we examine the contents of each tape to determine the number of databases and identify the necessary security and system information required to allow the creating of each database.
Once this process is completed we must then, for each database, set up the Exchange Database with the correct configuration and then populate it from the data from tape. It will then remain for us to extract each mail box from the database as a PST (MS Outlook) file. Each of these stages of the process is costed according to the time required. The initial set up of the server and the particular database would take approximately five working days (subsequent databases would require a further 2/3 days each). To process each tape would then take an additional day or two. Note that at present there only appears to be backups of one database however we cannot guarantee this without carrying out the work.
These figures and time estimates are based on the Exchange Database being in full working order and the data held on the tape being uncorrupted. We are able to extract individual e-mails from PST files and can send a quote to do that if required."
"To inspect and determine the configuration of each MS Exchange Database from each tape
Set-up and population MS Exchange Database.
£1,500 per database.
To process the data from each database to produce one PST file per mailbox
£1,250.00 per database."
"In the expression 'set up and population MS Exchange Database £1500.00 per database', the most obvious way of reading the reference to 'database' in the phrase "per database" is as a reference back to the database in relation to which the activity specified is to be carried out, namely 'MS Exchange Database'. The references to 'database' in the expression 'to process the data from each database to produce one PST file per mailbox £1250.00 per database' are no doubt more equivocal, but again, in the context of the quotation number 38118B as a whole, the obvious way in which to read those references, as it seems to me, is as referring to the databases more specifically identified earlier, that is to say 'MS Exchange Database'. In order to grapple with the proper construction with contract 38118B it is, therefore, in my judgment, necessary to adopt a more sophisticated approach than just to notice that the word 'database' where it appears in the quotation number 38118B sometimes is introduced with a capital letter and sometimes is not."
"Those observations can perhaps be summarised in this way: That my conclusion is that this was an opportunistic claim, which was formulated and pursued principally because of a perceived lack of robust resistance on the part of the Serious Fraud Office.
It follows logically from that finding that this was a claim which was known by the claimants to have no legitimate prospect of success. Indeed, it may be fair to stigmatise the claim as a dishonest claim. At all events, the claim being for a very large sum of money, being in my judgment entirely unjustified and being pursued against a perceived weak victim, it does seem to me to be appropriate to make an order for costs on an indemnity basis."
ORDER: Appeal dismissed with costs.