QUEEN'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT
Rolls Building, Fetter Lane, London, EC4A 1NL
B e f o r e :
| (1) Triumph Controls UK Limited
(2) Triumph Group Acquisitions Corp.
|- and -
|(1) Primus International Holding Co.
(2) Primus International Inc.
(3) Primus International Cayman Co.
(instructed by RPC) for the Claimants/Respondents
Mr Edward Pepperall QC and Ms Helen Gardiner
(instructed by Harrison Clark Rickerbys) for the Defendants/Applicants
Hearing date: 31 January 2018
Crown Copyright ©
The Hon. Mr Justice Coulson :
2. THE BACKGROUND
3. THE RELEVANT PRINCIPLES OF LAW
"50. There is more to be said about the change to standard disclosure and indeed to the express introduction of proportionality into the rules of procedure. "Perfect justice" in one sense involves a tribunal examining every conceivable aspect of a dispute. All relevant witness and all relevant documents need to be considered. And each party must be given a full opportunity of considering everything and challenging anything it wishes. No stone, however small, should remain unturned. Even the adversarial system at its most expensive in this country has not gone that far. For instance we do not include the evidence of a potentially material witness if neither side calls him or her. Nor do we allow pre-trial oral disclosure from all potential witnesses as is (or at least was) commonly the practice in the US.
51. But a system which sought such "perfect justice" in every case would actually defeat justice. The cost and time involved would make it impossible to decide all but the most vastly funded cases. The cost of nearly every case would be greater than what it is about. Life is too short to investigate everything in that way. So a compromise is made: one makes do with a lesser procedure even though it may result in the justice being rougher. Putting it another way, better justice is achieved by risking a little bit of injustice.
52. The "standard disclosure" and associated "reasonable search" rules provide examples of this. It is possible for a highly material document to exist which would be outside "standard disclosure" but within the Peruvian Guano test. Or such a document might be one which would not be found by a reasonable search. No doubt such cases are rare. But the rules now sacrifice the "perfect justice" solution for the more pragmatic "standard disclosure" and "reasonable search" rules, even though in the rare instance the "right" result may not be achieved. In the vast majority of instances it will be, and more cheaply so."
"It is unfortunate that this dispute about the extent of the key word search comes to Court after the Defendants acted unilaterally in choosing key words and conducting a search. In acting unilaterally, and in disregarding the clear advice in Part 31 Practice Direction, the Defendants have exposed themselves to the risk that the Court will conclude that their search was inadequate and that the Court should order the Defendants to carry out a further search. The Defendants submit that because they have already carried out a search, taking a considerable time and involving a very large cost, the Court should be most reluctant to order them to carry out a further search. It seems to me that I should approach the issues in relation to key words in two stages. At the first stage, I will attempt to identify where to draw the line between inclusion and exclusion of the suggested additional key words. If as a result of that process I conclude that the Defendants should have, first time round, used additional key words I will then have to consider whether to make an order for a further search under Rule 31.12. It is also possible for me to distinguish between the e-mail accounts of the 16 individuals who have already been the subject of key word searches and any further e-mail accounts found following the restoration of back-up tapes, where there have not previously been any key word searches."
"94. The Defendants say it would be wholly disproportionate for the Court now to require them to carry out a further search. They refer to the fact that the Defendants, unlike the Claimants, did not bring all the electronic documents together on one database. The result will be that if a further search is required the search will have to be done in situ in the various territories. It is also said that further searches are likely to throw up many further documents which (the Defendants submit) will be largely irrelevant and it will be a burdensome task to review manually so many documents. I have attempted, so far as I think appropriate, to balance the prospect of benefit from the exercise against the burden of the exercise so that where the burden on my assessment outweighs the benefit I have not included the key words asked for by the Claimants.
95. My overall conclusion is that is appropriate to order the Defendants to carry out electronic searches of the e-mail accounts of the 16 identified individuals, using the additional key words which I have identified. As I understand it, it ought to be possible for the Defendants to run a negative key word search using as negative key words the 10 words they previously used so as to eliminate documents which have already been processed in the earlier round of searches.
96. When judgment is handed down, I will hear Counsel as to the time which should be allowed for the Defendants to give the further disclosure which may be appropriate following further searches. I will also hear Counsel as to any consequential adjustments which may be appropriate to the directions previously given. At the hearing, the Defendants submitted that I should not order further disclosure because such an order would jeopardise the trial date. I will hear Counsel as to whether the trial will need to be re-fixed. It is not obvious to me at present that that will be necessary. If it is necessary to re-fix the trial date as a result of my further order for disclosure, then the Claimants do not complain because, of course, they seek an order for disclosure. As to the Defendants, unfortunately it was their failure to carry out a reasonable search in the first instance which has lead to the making of this further order."
4. ISSUE 1: THE FOLDERS AND FILE PATHS
5. THE BALANCE OF 220,000 DOCUMENTS