Jersey Unreported Judgments

Companies - decision in respect of applications by the defendant

[2019]JRC243

Royal Court

(Samedi)

16 December 2019

Before     :

Advocate Matthew John Thompson, Master of the Royal Court

 

Advocate J. D. Garrood for the Plaintiffs.

Advocate T. V. R. Hanson for the Defendant.

CONTENTS

		Paras
1.	Introduction	1-4
2.	The History of the present proceedings	5-13
3.	Decision	14-63

judgment

the MASTER:

Introduction

1.        This judgment contains my decision in respect of applications by the defendant:-

(i)        that the plaintiffs comply with certain discovery orders failing which the plaintiffs' defence of the defendant's counterclaim be struck out;

(ii)       in the alternative seeking discovery in support of certain admissions said to have been made by the defendant; and

(iii)      to adduce additional expert evidence.

2.        The main issue before me concerned whether the plaintiffs had complied with previous discovery orders.  During the course of argument it was otherwise accepted by both parties that the other matters raised by the defendant's summons should await a further directions hearing to take place following determination of the defendant's discovery application.  This acceptance was following indications I gave during the course of argument hearing that any further amendments to pleadings should take place after completion of any discovery ordered pursuant to this application, or if the application was unsuccessful, when this judgment was handed down.  In giving this indication, I also clarified that what was required from the plaintiffs was clarity in respect of any admissions they were making and the most appropriate place for any admissions to be set out was in a pleading. 

3.        In relation to expert evidence, I indicated that in principle I was willing to accede to the defendant's applications to adduce additional expert evidence but that further directions in respect of expert evidence should take place at the same hearing dealing with any required directions in relation to amendment of pleadings.  It would be at that stage that I would give permission for the defendant to adduce the expert evidence referred to in the summons with consequential directions allowing the plaintiffs to adduce evidence in response and for meetings of experts.

4.        The main part of this judgment therefore focuses on the defendant's complaints about the discovery provided by the plaintiffs.

The history of the present proceedings

5.        The procedural history to this dispute is complex.  I have issued four previous judgments in this matter on Hard Rock Ltd and Hard Rock Café International (STP) Inc v HRCKY Ltd [2013] JRC 244B (being a strike out and summary judgment application brought by the plaintiff); Hard Rock Ltd and Hard Rock Café International (STP) Inc v HRCKY Ltd [2015] JRC 117 (dealing with an application to amend by the defendant); Hard Rock Ltd and Another v HRCKY Limited [2016] JRC 129 (being an application by the defendant to adduce expert evidence in relation to franchise agreements) and Hard Rock Ltd and Another v HRCKY Limited [2016] JRC 157 (being an application in relation to specific discovery brought by the defendant).

6.        It is the latter judgment in relation to the defendant's specific discovery application that is most relevant to the present application before me.  That judgment was appealed leading to a decision of Commissioner Birt on 21^st November, 2016 for reasons set out in a judgment reported at Hard Rock Limited v HRCKY Limited [2017] JRC 048 dated 24^th March, 2017 where Commissioner Birt allowed an appeal by the defendant to extend the scope of discovery required by the plaintiffs.  On 19^th June, 2017 Deputy Bailiff Le Cocq (as he then was), further extended the discovery required from the plaintiffs.  No judgment was produced in relation to this decision.  I refer to the relevant parts of certain acts of court or judgments later in this judgment.

7.        The overall background to the present dispute was summarised in the Court of Appeal's judgment dated 2^nd August, 2019 reported at HRCKY v Hard Rock Limited and Anor [2019] JCA 123 overturning a decision of the Royal Court Hard Rock Limited v HRCKY Limited [2018] JRC 026 summarily dismissing the defendant's counterclaim.  The background is set out at paragraphs 11 to 18 which I adopt for ease of reference.  The Court of Appeal then summarised at paragraph 21 the defendant's case as follows:-

"21.    Stripped of the inessentials, the Appellant's case now really amounts to this:

(i)        The Respondents fraudulently misrepresented the anticipated profits of the restaurant business.  Had the Appellant been aware of the true likely position, or indeed even of the risks having regard to the worldwide experience of Hard Rock Café franchises, it would never have entered the Franchise agreement in the first place.  As a result, the loss which it has sustained extends to the investment made in a business it would never have entered.

(ii)       The unreasonable way in which the First Respondent responded to the requests made by the Appellant for changes in the standard operating business model which the First Respondent insisted upon was a breach of the implied duty of good faith under the contract itself.  This caused or contributed to the losses sustained by the Appellant in the operation of its business.

(iii)      The termination of the business agreements by the Respondents was unlawful.

(iv)      There were various overpayments in any event made by the Appellant to the Second Respondent in respect of which damages are due."

8.        The position of the plaintiffs was summarised at paragraph 22 as follows:-

"22.    The Respondents deny these claims.  The misrepresentations are denied in fact, and it is also asserted that the Appellant cannot rely upon them, even if they were made, because one of the terms of the contract contains a 'whole contract' provision which excludes any liability for representations made before contract.  Similarly there was an express exclusion of liability in relation to any representations which had been made that a specific level of profit would be achieved. The Respondents rely upon the maxim that la convention fait la loi des parties and assert that these provisions in the Franchise agreement should be given full effect."

9.        The first relevant discovery order was made by me on 27^th July, 2016 where the plaintiffs were ordered at paragraph 1(d) to disclose:-

"any documents comprising or containing any profit summary for franchise cafes recording annual profits, whether by restaurant, or by sales of merchandise or both for the financial years 1998 to 2013 inclusive."

10.      The act of court of 21^st November, 2016 issued by Sir Michael Birt contained the following order at paragraph 1(b):-

"The following documents prepared for each of the financial periods from 1998 to 2004 and 2011 to 2013 inclusive (in the form appearing at or materially similar to documents 445, 447, 453, 454 and 457 of the Defendant's List of Documents served on the 24th September, 2015):

(i)        Hard Rock Café - Active Units- Cafes Restaurant Only Summary

(ii)       Hard Rock Café - Active Units - Cafes Restaurant EBIT (%)

(iii)      Hard Rock Café - Active Units - Cafes Restaurant + Merchandise Summary

(iv)      Hard Rock Café - Active Units - Cafés Industry Benchmark Comparison."

11.      The act of court of Deputy Bailiff Le Cocq on 19^th June, 2017 at paragraph (i) and (ii) stated as follows:-

"(i)       the Plaintiffs shall give discovery of documents by way of a supplementary list of documents to contain the same or similar information as contained in the profit summaries previously disclosed in the Plaintiffs' discovery pursuant to the Acts of Court dated the 27th July, 2016, and the 21st November, 2016, for the corporate cafes for the years 1997 to 2004 inclusive, by 4 p.m. on the 4th July, 2017;

(ii)       the term 'documents' in paragraph (i) above shall not include documents comprising raw data but shall be documents that contain collated information and/or data."

12.      The present application by the defendant was supported by the 12^th affidavit of Mr Kevin Doyle dated 1^st October, 2019.  In response the plaintiff filed the second affidavit of Francis Keegan sworn on 28^th October, 2019.  I was also referred to various other affidavits filed by the parties earlier in these proceedings.  Where relevant I have referred to these affidavits later in this judgment.

13.      The other issue I have to refer to at this stage concerns the ambit of the decision of the Court of Appeal because during argument there was a dispute as to whether the decision of the Court of Appeal had the effect of setting aside the entirety of the judgment of the Royal Court dated 1^st February, 2018 or whether the matters remaining in dispute only concerned issues of dol and dol par reticence.  This was because McNeill JA in giving leave to appeal (Hard Rock Ltd and Hard Rock Café International (STP Inc) v HRCKY Limited [2018] JCA 152) only granted leave to appeal that part of the decision of the Royal Court dismissing the defendant's counterclaim based on issues of dol and dol par reticence.  In light of this difference I have re-read both the acts of court issued by the Court of Appeal and the Court of Appeal's judgment and in my view both are clear in that the entirety of the decision of the Royal Court on 1^st February, 2018 was set aside, not just the Royal Court's decision in relation to claims based on issues of dol and dol par reticence.  In reaching the decision contained in this judgment I have therefore proceeded on the basis that the entire allegations raised by the defendant in its counterclaim are to be determined at trial in due course.

Submissions of the parties

14.      Advocate Hanson for the defendant made the following submissions:-

15.      Firstly the effect of the order of the Deputy Bailiff was to enlarge the discovery previously ordered to cover the year 1997.  Other relevant years were covered by a combination of the orders issued by Sir Michael Birt and myself.

16.      In relation to profit and loss summaries Advocate Hanson emphasised paragraphs 28 and 29 of the decision of Sir Michael Birt [2017] JRC 048 as follows:-

"28.    As to paragraph 1.8, I consider that these documents are relevant for the same reasons.  There are reasonable grounds for thinking that these documents will provide information about the performance of corporate cafés and the restaurant side of the business in particular.  Again, I consider it relevant both in relation to the claims of misrepresentation (so far as the information is available for 1999 and earlier years) and to the claim for breach of contract. 

29.      I also consider that it is proportionate to order the disclosure of such documents and that such documents exist.  The defendant is already in possession of documents collating this information under the four headings for the years 2005 - 2010 and it is therefore reasonable to think that such information has been collated for the earlier and later years."

17.      Advocate Hanson also relied on the conclusion I had reached in my judgment dated 9^th September, 2016, that the profit and loss summaries about the restaurant side of the business only were relevant, albeit I limited the discovery to the performance of the franchise cafés only rather than corporate cafés.

18.      Documents from 1997 existed firstly because profit summaries for 2005 at columns G and H contained a section showing profitability for restaurants only for 1997.

19.      Secondly, attached to the spreadsheets for the 2005 profit summaries were disclosable documents showing profitability for restaurants only owned by the plaintiffs for 1997 which had not been listed.  These documents were also hidden behind the 2005 summary and could only be discovered by someone with expertise in relation to spreadsheets.  The fact that such documents could be found did not mean that the plaintiffs had discharged a discovery obligations.  Profit and loss summaries for earlier years were not raw data (which did not have to be disclosed) and were therefore disclosable.

20.      Mr Doyle, as described in his twelfth affidavit, had carried out further analysis to identify other documents hidden behind the 2005 profit and loss summaries which also had not been listed.

21.      Evidence of analysis of profits for corporate cafés had also been produced for 1992 and 1993 by reference to the first affidavit of Keith Doyle sworn on 20^th January, 2019.

22.      What information had been disclosed illustrated that nearly 90% of restaurants were loss making which went way beyond any admission made and was extremely relevant to the defendant's counterclaim.

23.      Advocate Hanson also relied on the fact that the audited accounts of Rank Group Plc, the ultimate parent company of the Hard Rock Group in 1998 contained on page 10 observations on the Hard Rock Cafés' performance as a subsidiary stating :-

"Gross margins for the year improved by .6% in the restaurant and 1.8% on merchandise."

24.      This extract lead Mr Kevin Doyle at paragraph 14 of his twelfth affidavit to state:-

"This statement could not and would not have been made by the Rank Board nor would it have been validated by its auditors Price Waterhouse Coopers unless profit/loss summaries had been allocated between the restaurant-only and merchandise-only sides of the Hard Rock Café outlets."

25.       Any analysis carried out by the plaintiffs of the performance of corporate cafés for the relevant years was not collating raw data but was disclosable in accordance with orders previously made.  The level of detail in the report referred at paragraph 11 of Mr Doyle's twelfth affidavit made it clear that the report referred to which contained four hundred lines of data was an analysis of performance not a collection of raw data.

26.      The defendant's position was also supported by a statement from a Mr Greg Leonard, Chief Financial Officer of Hard Rock Café International (USA) Inc who stated the following at paragraph 8 of his statement dated 30^th September, 2019:-

"During my employment with Hard Rock International, I confirm that financial accounting records for its corporate owned restaurant operations that were separate to the merchandise operations were regularly created and made available to executives within Hard Rock International and to The Rank Group Plc.  These accounting records were treated as Profit and Loss accounts detailing the separation of restaurant-only and merchandise-only operations for Hard Rock Internationals' corporate owned restaurants and merchandise operations.  These reports were regularly discussed at in-house meetings of Hard Rock International's executive management although I am unaware of such records being issued by Hard Rock International to its franchisees and these Reports were supplied to The Rank Group Plc."

27.      Advocate Hanson criticised the plaintiffs' approach to discovery as lamentable relying on the fact that there had already been three contested discovery applications without discovery obligations being met.  He also relied upon observations by the Court of Appeal that discovery was not complete (see paragraphs 23 and 69 of the Court of Appeal judgment).

28.      Advocate Garrood in response contended in relation to the profit summary for 1997 attached to the 2005 profit summary that this was not a document created in 1997 but was rather a document created in 2005 to analyse the split between restaurant and merchandise profitability in 1997.  It was produced by applying a formula to the 1997 accounts that had been disclosed to calculate in 2005 a split of profitability between the restaurant and the merchandise side of the business in 1997.

29.      In both his first affidavit sworn on 7^th July, 2017 and his second affidavit sworn in opposition to the defendant's application dated 28^th October, 2019, Mr Keegan deposed that the reporting format he used to create the profit summary for restaurants only in 1997 was only created in 2005.  Both his affidavits stated:-

"This reporting format was requested by Hamish Dodds when he joined the Hard Rock Group." [Paragraph 11 of his first affidavit and paragraph 11 of the second affidavit.]

30.      Advocate Garrood therefore argued that there was no evidence of profit and loss summaries for the restaurant side only in the business being produced in 1997 and what was being asked for therefore was raw data, because that was data attached to the profit summaries produced in 2005 which had been disclosed and which had been worked on as described by Mr Keegan.

31.      He also invited me to review affidavits previously filed by the plaintiffs setting out how the plaintiffs had met their discovery obligations, in particular the fourth affidavit of Rebecca Roby sworn on 27^th September, 2016 filed in response to the discovery order I made on 27^th July, 2016.

32.      He therefore argued that discovery had been completed and everything relevant had been produced.  There was an explanation for the attachments to the 2005 profit and loss summaries; it was not for the plaintiffs to create new documents now applying an approach they took in 2005.  The defendant and its advisers were able to analyse the material provided to see what conclusions could be drawn.

33.      It is also right to record that I asked Advocate Garrood specifically whether the auditors of the plaintiffs in 1997 to 1999 had been asked whether they had any relevant records or whether board minutes or records relating to meetings of boards of the plaintiffs had been reviewed to see whether they contained any documents analysing the profitability of the restaurant side only in the business.  He candidly confirmed that these sources had not been reviewed.

Decision

34.      In respect of the plaintiffs' application, the central issue for me to determine is whether I am entitled to go behind the various affidavits filed on behalf of the plaintiffs in response to discovery orders previously made.

35.      In relation to the first and second affidavits of Mr Keegan, his evidence was that the attachments to the 2005 profit and loss summaries showing profit and loss summaries for the restaurant only side of the business in 1997 in respect of corporate cafés were documents created by him in 2005 applying a particular formula.  I accept this answer is true, but the question I have to consider is whether this answer is sufficient to conclude that the plaintiffs have discharged their discovery obligations.

36.      What the plaintiffs were ordered to provide by me was set out in my act of court 27^th July, 2016 where I ordered discovery of:-

"any documents comprising or containing any profit summary for franchise cafes recording annual profits, whether by restaurant, or by sales of merchandise or both for the financial years 1998 to 2013 inclusive."

37.      The effect of the order Sir Michael Birt dated 21^st November, 2016 at paragraph 1(b) was to extend the order for discovery I had made to corporate cafés to cover the years 1998 to 2004 and 2011 to 2013.

38.      Sir Michael Birt's order required disclosure of summaries in the form appearing or materially similar to certain documents identified in the defendant's list of documents dated 24^th September, 2015.

39.      The effect of the order of Deputy Bailiff Le Cocq on 19^th June, 2017 required the plaintiff to produce a supplementary list of documents "to contain the same or similar information as contained in the profit summaries previously disclosed".

40.      My construction of the order of the Deputy Bailiff Le Cocq is that what this required was that, if a document exists that contains any profit summary containing the same or similar information to that already disclosed about profitability of corporate cafes, then such a document is disclosable.  It does not therefore matter what type of document contains the information.  Rather the disclosure obligation is determined by what information about the profitability of corporate cafés is contained in a document.  If a document contains information that is the same as or similar to information about such profitability already disclosed then that document is disclosable.

41.      The affidavits of Mr Keegan do not therefore answer whether the discovery exercise carried out by the plaintiffs extends to cover documents in materially similar form showing or recording profitability of the corporate cafés only for the years in question.

42.      Rather his affidavits only explain the process he applied in 2005.  All his affidavits therefore confirm is that the format that Mr Keegan used in 2005 had not been used prior to 2005.

43.      What neither he nor Miss Roby do not state in any affidavits is that profit summaries in relation to the restaurant only side of the business for corporate cafés were not produced in any format or were not produced at all. The affidavits of Mr Keegan are not therefore an answer to the defendant's criticisms and cannot be accepted as being conclusive evidence that the plaintiffs have met their discovery obligations.

44.      The absence of any such affidavit also contrasts with the statement from Mr Leonard dated 30^th September, 2019 who was Chief Financial Officer of Hard Rock Café International USA from September 1994 to August 1998.  He has made a clear statement that the financial accounting records for corporate owned restaurants, cafés "were regularly created and made available to executives within Hard Rock International and to the Rank Group Plc.  These accounting records included a separation of restaurant and merchandise operations and an analysis of their profitability."

45.      In relation to the hearing before me, no affidavit was filed in response to Mr Leonard's statement by the plaintiffs.  The plaintiffs have not therefore stated in response to the present application that financial accounting records showing the probability of restaurant only operations for corporate owned restaurants were not produced for the years in question.

46.      I also note that in her third affidavit Miss Rebecca Roby sworn on 21^st July, 2016 in opposition to the specific discovery application brought before me leading to my act of court of 27^th July, 2016, at paragraph 16 in relation to a request for discovery of accounting records for corporate cafés states:-

"The financial and accounting records sought at paragraphs 1.8 and 1.9 are not available as they would not have been created or stored in the form described for 1998 and 1999."

47.      This closely follows the language used by Mr Keegan in his affidavit.  It does not mean however that financial and accounting records for corporate cafés showing the profitability of restaurants were not created in some different form for the years in question.  The third affidavit of Miss Roby is not therefore an answer to the evidence of Mr Leonard.

48.      Nor am I satisfied it is safe to rely on later affidavits filed by the plaintiffs.  This was because as stated above Advocate Garrood candidly accepted that neither the board minutes of the plaintiffs had been searched, nor had any board packs supplied for any board meetings; nor had enquiries been made of any auditors retained by the plaintiffs at the relevant time to see what records they held.  While therefore Miss Roby in her fourth affidavit at paragraph 7 describes extensive searches having been made of paper records the plaintiffs retained which is repeated at paragraph 6 of her fifth affidavit, these statements cannot be regarded as conclusive where two obvious sources for the location of relevant accounting records have not been reviewed i.e. board minutes and papers supplied for board meetings and records held by auditors.

49.      There is also other evidence that such records exist.  Mr Keith Doyle's first affidavit of 20^th January, 2019 at paragraph 6 referred to analysis of restaurant performance for the period 1992 and 1993.  While Advocate Garrood attempted to contend that these figures were produced by different owners by reference to a judgment issued by the United States District Court of New York dated 4^th June, 1999, I refused him permission to do so because there was no affidavit evidence filed to rebut the affidavit of Mr Keith Doyle or to explain the context of the US judgment.

50.      Secondly, the annual report of the Rank Group Plc the ultimate parent company of the plaintiffs for the amended 31^st December, 1998 at page 10 contained the following statement:-

"Gross margins for the year improved by .6% in the restaurant and 1.8% on merchandise. Food and beverage turnover representing 52% of the café turnover with merchandise in turnover contributing 48% (1997) 48%/52%.  Like for like café turnover decreased by 10.6% for the year."

51.      These accounts which are accounts from the entire group are consistent with the plaintiffs carrying out some form of analysis of the profitability of the restaurant side of the businesses they owned and operated in 1997 and 1998.

52.      The accounts of the Rank Group also contained the following statements at page 8:-

"The directors acknowledge they are responsible for the Group's system of internal financial controls, which are designed to provide reasonable but not absolute assurance against material misstatements or loss;

Considerable importance is placed on maintaining a strong control environment.  In particular, there is a simple organisational structure with clearly drawn lines of accountability and delegation of authority.  Adherence to specified codes of conduct is required at all times and the board actively promotes a culture accords and integrity.  Risks are identified and appraised both formally through the annual process of preparing business plans and budgets, and informally through close monitoring of operations.  Financial results of various key business statistics are reported regularly throughout the year and variances from approved plans and budgets are monitored and investigated.  Detailed control procedures exist throughout the Group's operations and compliance is monitored by management, the Group's internal auditors and, to the extent they consider necessary to support their audit report, the external auditors."

53.      These statements enable me to conclude that the extract from the accounts referred to above is based on a profitability assessment of the restaurant side of the business carried out and provided to the auditors.  The fact that the Rank Group no longer own the Hard Rock business does not affect the statements in the accounts that there were strong control environments, identification of risks and close monitoring of operations including the provision of financial results and key business statistics.  This accords with my own experience as a partner owning a business and as a lawyer advising many other businesses.  Analysis of whether restaurants run by the Hard Rock Café itself as distinct from franchises were profitable is an obvious measure to review because, if under the business model corporate cafés or particular corporate cafés were losing money, the plaintiffs' directors would be obliged to consider what steps to take.  In extreme cases directors can be held liable for deliberately trading while insolvent.  While this possibility does not arise in this case, the potential liability of directors for trading while insolvent means that analysis of profitability of a business and its key parts is almost always reviewed for consideration by directors and on a regular basis.  There is no reason to conclude why the plaintiffs would not follow this general approach. This analysis is also consistent with the evidence of Mr Leonard to which I have already referred.  By contrast, no evidence was produced to me to state that the plaintiffs did not analyse profitability of the restaurant side of the business in 1997 or 1998 either in response to Mr Leonard's statement or to rebut the general approach I have described.

54.      I also note that the terms of the franchise agreement at section 12 give the Hard Rock Group extensive rights to inspect a franchisee's records and to information including the provision of annual audited financial statements extending to a balance sheet statement of income and as well as an audited statement of what fees are due to the Hard Rock Group as franchisor.  While these obligations concern franchise arrangements rather than corporate cafés run by the Hard Rock Group itself, the approach is consistent with the approach described in the accounts of the Rank Group Plc which I have referred to above.  Although the information that had to be provided did not expressly refer to profit and loss, the amount of information required allows for an analysis of profitability to occur. It would also be surprising on the one hand for the plaintiffs to require detailed information about the financial performance of its franchise operations without receiving the same, if not more information, in relation to the operation of businesses it ran and owned itself.

55.      The above reasons lead me to conclude that documents exist or likely to exist in relation to the probability of the restaurant side of the business which were required to be disclosed by Sir Michael Birt and Deputy Bailiff Le Cocq and which have not been disclosed.

56.      The documents are also clearly relevant to the issues in dispute as formulated by the Court of Appeal.

57.      Without affidavit evidence in response to say which documents exist or do not exist or are no longer held by the plaintiffs, I am satisfied that the plaintiffs have not complied with their discovery obligations.

58.      While this is not a specific discovery application but rather an application based on noncompliance, I add for the sake of completeness that there was no argument before me that to produce such records would be oppressive.  It is certainly not oppressive to review board minutes and papers supplied to relevant boards or to make enquiries of auditors to see whether such information exists or existed.

59.      The order asked for is therefore justified namely that the plaintiffs comply with the previous orders relating to discovery culminating with the order of the Deputy Bailiff dated 19^th June, 2017.

60.      Moreover this dispute has been ongoing since 2013.  Issues about discovery have been running since 2016.  There is therefore force to the submissions of Advocate Hanson that the plaintiffs must be compelled to comply with previous court orders in order to discharge their discovery obligations.  I therefore agree a sanction is required.  In formulating an appropriate sanction I also have to bear in mind that some of the enquiries that should be made are of third parties i.e. auditors.  A sufficient period should therefore be allowed to make enquires and for such organisations to respond.

61.      The sanction sought by the defendant was to require compliance within 7 days, failing which the plaintiffs were debarred from defending their counterclaim, or alternatively judgment would be entered for the defendant with costs and damages to be assessed.  This period is too short to be a fair and proportionate sanction.  Rather I consider that the plaintiff should be allowed until the end of January 2020 to comply with their obligations.

62.      In my judgment it is however appropriate to make an unless order to the effect that if the plaintiffs do not file an affidavit in compliance with the order of the Deputy Bailiff dated 19^th June, 2017 by 31^st January, 2020 then judgment on liability in respect of the defendant's counterclaim be entered.  The affidavit to be filed in accordance with the order of the Deputy Bailiff Le Cocq requires a supplementary list of documents to be produced and must also specify any documents that the plaintiffs had but no longer possess.  In other words if the plaintiffs did produce profit summaries for the corporate cafés but the plaintiffs no longer possess or have access to these records, then the affidavit should make this clear including setting out when the plaintiffs last had possession of any disclosable documents and the reasons why they no longer have possession of any such documents.

63.      Finally, the affidavit must also define precisely areas searched in much more detail than provided to date.  To simply state that an extensive search of relevant paper records has been provided, in view of the conclusions I have reached, is not sufficient.

Authorities

Hard Rock Ltd and Hard Rock Café International (STP) Inc v HRCKY Ltd [2013] JRC 244B. 

Hard Rock Ltd and Hard Rock Café International (STP) Inc v HRCKY Ltd [2015] JRC 117. 

Hard Rock Ltd and Another v HRCKY Limited [2016] JRC 129. 

Hard Rock Ltd and Another v HRCKY Limited [2016] JRC 157. 

Hard Rock Limited v HRCKY Limited [2017] JRC 048. 

HRCKY v Hard Rock Limited and Anor [2019] JCA 123. 

Hard Rock Limited v HRCKY Limited [2018] JRC 026. 

Hard Rock Ltd and Hard Rock Café International (STP Inc) v HRCKY Limited [2018] JCA 152.