Before : |
Advocate Matthew John Thompson, Master of the Royal Court. |
Between |
Badrul Huda |
Plaintiff |
And |
Minister for Health and Social Services |
Defendant |
Advocate I. C. Jones for the Plaintiff.
Advocate J. P. Rondel for the Defendant.
CONTENTS
|
|
Paras |
1. |
Introduction |
1 |
2. |
Background |
2-11 |
3. |
The defendant's affidavits of discovery |
12-16 |
4. |
Submissions |
17-32 |
5. |
Interim discussions and order |
33-43 |
6. |
The defendant's affidavits |
44-47 |
7. |
Discussion |
48-73 |
8. |
The parties' analysis of whether full discovery is likely to have occurred |
74-80 |
9. |
Final decision |
81-91 |
judgment
the MASTER:
1. This judgment contains my decision in respect of an application by the plaintiff to strike out the answer of the defendant on the basis that the defendant was either in breach of an unless order or alternatively that to allow the case to continue would be an abuse of process of the court.
2. The background to this matter is set out in my previous judgment dated 17th February 2020 reported at Huda v Minister for Health and Social Services [2020] JRC 029. I refer to paragraphs 2 to 8 which I adopt for ease of reference in relation to this judgment.
3. The central relevant events leading to the present proceedings were summarised at paragraphs 9 to 33 of my previous decision which I also adopt. They began at the end of June 2016 with a complaint by patient A. This complaint led to a referral about the plaintiff's conduct being made on behalf of the defendant to the General Osteopathic Council ("GOC" ) in August or September 2016 in breach of the defendant's own procedures - the precise timing of the referral is in dispute. The plaintiff was then suspended from practice on 7th November 2016. On 2nd December 2016, the GOC wrote to the plaintiff to indicate that it had found a case to answer. The plaintiff's suspension was lifted subject to certain conditions on 5th January 2017. However, the final hearing did not take place until 19th - 25th July 2018. Following an application on behalf of the plaintiff to the GOC that there was no case to answer, the complaint against the plaintiff was dismissed.
4. In my previous judgment I found there was an arguable claim of misfeasance in public office on the basis of untargeted malice (see paragraphs 80-84). The persons alleged to have acted in such a manner against the plaintiff on behalf of the defendant are Lorraine Wells, Mary Campfield, Miss Christine Blackwood and Dr Susan Turnbull.
5. Although the defendant is described as being the Minister for Health, the individual holding the position at the time of the relevant events was former Senator Andrew Green.
6. Following the previous judgment being handed down, the parties were directed to seek to agree directions in relation to discovery (and amendment to pleadings following discovery) to reflect the previous judgment (see paragraph 5 of the Act of Court of 17th February 2020). This direction led to the Act of Court dated 15th April 2020 where the parties were required to provide discovery by Friday, 31st July 2020.
7. The same Act of Court identified the email accounts to be searched by the defendant as well as the search terms to be used for each email account and the periods of the search. Those periods were generally for 29th June 2016 to 20th July 2018. 36 email addresses were identified. The main argument concerned the extent of the time period applicable for searches of email accounts. I ruled that the period of searches was to be for the period from the date of patient A's complaint until the GOC ruled there was no case to answer. However, in the case of Mr. Chris Dunne, the then Director of Ccommunity Ccare, the period was extended until the plaintiff's complaint to the States Complaints Board ("SCB") was concluded on 26th October 2018.
8. At the hearing on 15th April the defendant was represented by Advocate Lacey of Lacey Advocates. I encouraged her to consider using e-discovery providers to carry out the searches I had required using appropriate artificial intelligence tools. This was because I regarded this as more efficient than someone within the information technology department of the States applying search terms to email accounts over a two-year period. My concern was the amount of data that might have to be searched. Advocate Lacey reassured me that she was very familiar with the States' systems and so expert assistance would not be necessary. I made it clear that I expected compliance with the deadline I had set.
9. On 9th July 2020 Advocate Rondel took over conduct of the case from Advocate Lacey.
10. On 6th August 2020 the deadline for the defendant's discovery exercise was extended to close of business Friday, 28th August 2020. Paragraph 2 of the Act of Court of 6th August 2020 provided as follows:-
"2. if the Defendant fails to provide discovery pursuant to the deadline extended by paragraph 1 of this order, then the Defendant's answer will be struck out automatically without further order...."
11. This order followed a summons issued by the defendant on 4th August 2020. The plaintiff had indicated it was minded to apply for judgment. However, I indicated that I would take some persuasion to grant judgment as a result of which the summons was dealt with by consent leading to the Act of Court of 6th August 2020. I had also indicated that an unless order was justified because of the length of time the Modernisation and Digital Department of the States (which looks after the States IT systems generally) had taken to comply with the orders I had made on 15th April 2020.
12. The defendant has filed two affidavits of discovery sworn by Anna Adkin whose job title according to her affidavit is Legal Services Manager for the defendant. Her first affidavit was sworn on 31st July 2020 and contains the following material paragraphs:-
"5. The List of Documents exhibited to this affidavit is not complete; whilst the Defendant has worked tirelessly to try and meet the deadline set by the Court, it has been unable to complete its discovery exercise within the period of time permitted by the Court. Below I explain in further detail the issues the Defendant has faced in undertaking the discovery exercise as well as the steps that it has taken to date to try and ensure that as much documentation has been reviewed as possible in advance of the deadline and listed in the List of Documents exhibited to this affidavit.
11. The Defendant changed counsel between the orders made by the Court on 15th April, 2020 and the deadline in respect of the Defendant's discovery exercise. Advocate James Rondel of the Law Officers' Department came on the record for the Defendant on 9 July 2020. It became apparent that such was the size of the exercise that the Defendant was required to undertake, external counsel would be required to assist with its progression. On 13 July 2020 external counsel were engaged.
14. The Defendant has encountered a number of problems with its searches of the email accounts that were ordered by the Court to be searched by the Defendant as part of its discovery exercise on 15 April, 2020.
15. Cryoserver is used to search Government of Jersey email accounts. Cryoserver is an emailing archive system. In conducting its discovery exercise, the main issue which the Defendant has had is that the Cryoserver used to search Government of Jersey email accounts only retains data to two years. As such, when Cryoserver is used to search for certain email accounts or keywords, it will only provide results for the date of that search and any other hits within the two-year period preceding the date of the search.
16. The Defendant emails the Modernisation and Digital Department of the Government of Jersey ("Modernisation and Digital") on 7 April, 2020 to advise of the upcoming discovery exercise and to ask how the relevant documents could be accessed. On 6 May, 2020, Modernisation and Digital provided the Defendant with access to the Cryoserver and on 18 May, 2020, the Cryoserver was used to search the relevant email accounts according to the keywords as ordered by the Court. As such, the Defendant only holds results from its Cryoserver searches from between 18 May, 2018 and 18 May, 2020. This means that the Cryoserver cannot be used to search for emails to or from the relevant email accounts between 29 June, 2016 and 17 May 2018.
17. A further difficulty which the Defendant has encountered which has made it impossible for the results of the Cryoserver to be reviewed in advance of the deadline, is the overwhelming volumetrics which have been returned as a result of the Cryoserver search. It is not possible to run a single search on the Cryoserver using each keyword or search term. As such, eight separate searches were undertaken to ensure that all of keywords and email accounts as determined by the Court order were searched. In respect of Search 1 alone, such a large amount of results were returned by the search that it had to be provided to external counsel in five separate zip files. One of these zip files alone contained approximately 15,000 items. Counsel have advised that the main cause of this to be certain keywords, in particular, "BH", "Mr H" and "Miss T". By way of example, the search on Cryoserver for BH returned 61,136 results and appears to have captured every email sent by or to any person using the Cryoserver which was sent or received which contained the letters "BH"."
13. The affidavit also disclosed at paragraph 19 the following:-
"19. However, where an individual has left the Defendant's employment, their "live" inbox has become restricted and eventually deleted after three months. The defendant does not have access to the following "live accounts".:
a. Michelle Adams end date 31/10/2017
b. Sarah Zohhadi end date 08/05/2019
c. Andrew Green end date 01/06/2018
d. Julie Garbutt end date 14/07/2018
e. Chris Dunne end date 14/01/2019
f. Nicola d'Alessandro end date 04/08/2017
g. Marie Leeming end date 15/06/2018
h. Fon Roberts end date 06/06/2019
i. Tracey Fullerton end date October 2017
j Christine Blackwood. End date 28/06/2019"
14. The affidavit then continued at paragraph 20 as follows:-
"20. As such, subject to the direction of the Court, it is the Defendant's intention to search the "live" inboxes of the people who are named in the Schedule and which it has access to and to provide a supplementary list of documents as a result of these searches. Similarly, in relation to named individuals who are no longer employed by the Defendant, it is our intention to review these accounts via the results of the Cryoserver search, albeit this exercise will be very difficult and time consuming owing to the blunt nature of the search function available in respect of Cryoserver and the volumetrics that the Cryoserver search produced."
15. In relation to those individuals who had left the employment of the defendant referred to in paragraph 19 of her first affidavit. Ms Adkins at paragraph 13 of her second affidavit stated as follows:-
"As such, for those persons named in the Schedule who are no longer employed by the Defendant, a review has taken place of the hard copy documents, the network file areas and the result of the Cryoserver search, being emails sent and received from a8 May 2018 until 26 October 2018. Where relevant emails have also been sent, received or copied to other persons who are named in the Schedule and who continue to be employed by the Defendant, these will also have been captured in the search of other "live" email inboxes. Whilst it has not been possible to review the "live" email inboxes of persons no longer employed by the Defendant, for the reasons already explained, the Defendant nonetheless considers that it has made a reasonable search for documents, in accordance with the overriding objective of the Royal Court."
16. The first affidavit of discovery disclosed 112 internal emails. Of these 37 were for the period prior to the plaintiff making his first complaint about the referral to the GOC. An additional 151 emails were disclosed in the second affidavit. Of this second batch 49 related to the period prior to the plaintiff's first complaint.
17. Advocate Jones for the plaintiff made the following submissions:-
(i) The defendant was in breach of an unless order because it had not searched the ten missing email accounts and therefore he sought confirmation that the defendant's answer had been struck out.
(ii) The order of 15th April 2020 at paragraph 4 required email accounts to be searched and the defendants had not done that and therefore was in breach.
(iii) While it was not clear when the defendant knew that it could not search for email accounts of individuals who had left, the defendant had not sought to vary the order of 15th April 2020.
(iv) The argument on 15th April 2020 was about which email accounts should have been searched. This included Mr Dunne; yet by the time of that application his email account had been deleted because he had left on 14th January 2019. By 15th April 2020, the defendant should have known this position or in fact did know.
(v) Advocate Jones also emphasised the remarks of the then counsel for the defendant at the hearing on 15th April 2020 that she was familiar with the States' systems and that an e-discovery provider was not necessary. That familiarity meant, Advocate Jones contended, that Advocate Lacey should have known that accounts of employees who had left more than 1 year before the date of the hearing had already been deleted.
(vi) In any view the defendant must have known that email accounts had been deleted by 31st July 2020. Revelation of the true position would have led to a different hearing before the court and a summons at that stage instead of a consent order. Instead the court was misled because while the defendant was seeking an extension of time to comply, by that stage the defendant knew it could not comply. Advocate Jones was highly critical of this approach.
(vii) The plaintiff cannot now analyse what is missing because key email accounts are missing.
(viii) The defendant accepted it had not complied with an unless order. The court having made an unless order should enforce it by giving effect to the sanction the court had previously imposed.
18. Although the defendant even now had not sought a variation, the thrust of the defendant's position was to be excused from the clear terms of the order of 15th April 2020.
19. The lack of any application for relief from sanction meant that if the unless order was not enforced the defendant would obtain relief from sanction by the back door. Advocate Jones fairly accepted the court had been placed in a difficult position. If the court felt that some relief should be granted, he however asked rhetorically what was the point of an unless order.
20. In giving effect to the unless order he reminded me that I was not dealing with an impecunious defendant.
21. In respect of when the defendant was put on notice of the claims, the first letter before action was sent on 28th March, 2017. This was sent by an English Barrister representing the plaintiff in relation to the defamation proceedings the plaintiff subsequently brought in England. Subsequent to the hearing I was provided with copies of these letters. The letter before action alleging defamation related to the referral to the GOC by the defendant which the plaintiff alleged was defamatory. The letter in a number of places stated that:-
"In referring the report to said counsel or allowing it to so referred, were carried out and flagrant and knowing breach of the established procedures of the Jersey Health and Social Services Department."
22. Advocate Jones sent a second letter before action dated 13th December 2018 foreshadowing the present proceedings which were issued by him on 5th July 2019 and served shortly thereafter.
23. Advocate Jones therefore referred me to paragraphs 3 to 5 of Practice Direction RC17/07 which came into force on 1st June, 2017. Paragraphs 3 to 5 state as follows:-
"3. As soon as a party is aware that litigation is contemplated, that party must immediately take all reasonable steps to ensure that potentially discoverable documents are preserved.
4. As soon as a party retains a legal representative, that legal representative must inform its client of the need to preserve all potentially discoverable documents.
5. The party and its legal advisers in either case shall take all reasonable steps to ensure that no potentially discoverable document is destroyed pursuant to any document retention policy or otherwise in the ordinary course of business."
24. Advocate Jones also reminded me that the defendant had legal representation in responding to the plaintiff's complaint to the States Complaints Board, where the defendant was assisted by Mourant Ozannes (in Guernsey).
25. As the defendant, despite the letters before action and the complaint to the States Complaints Board, had not taken steps to preserve documentation, the defendant should not be allowed to profit from its own breach. This was particularly significant in respect of Miss Blackwood who was one of the individuals named in the order of justice said to have acted with untargeted malice. Advocate Jones was particularly critical of the failure to preserve Miss Blackwood's account because she had only left a few days before the order of justice was signed and served and yet her email account was allowed to be destroyed.
26. The affidavits of discovery also failed to show whether any backup tapes had been searched. He argued this was an extraordinary position
27. He also criticised the use of the Cryoserver search system because this was not a system to preserve or manage relevant data but was an anti-money laundering tool.
28. Finally, Advocate Jones emphasised that his client's complaint was about a failure to follow a process. The plaintiff now faced the additional difficulty of the defendant having failed to follow a further process in terms of ensuring that potentially relevant documents were kept safe.
29. Advocate Rondel for the defendant made the following submissions:-
(i) He had the previous day spoken to the Chief Information Officer who had informed him that the States did apply backup tapes to material for the twelve-month period after the email account of a leaver had been closed. After 12 months the data on back up tapes was then deleted permanently.
(ii) He could not assist with what policy there was to preserve information either generally within the States or in relation to when litigation was within reasonable contemplation.
(iii) He was also unable to assist with what steps were taken when either the letters before action were sent or proceedings were issued to preserve documentation.
(iv) He fairly accepted based on the material before me that it was only a week before the directions hearing in April was any approach made to Modernisation & Digital to seek to obtain access to the relevant email accounts.
(v) He also could not say what the knowledge or what the approach was of Ms Adkins, the Legal Services Manager for the defendant in relation to preservation of documents or what communications were sent out about preservation of such documents.
(vi) The issue of accounts being deleted had been raised with Advocate Jones in correspondence prior to the Act of Court of 6th August 2020 albeit it was not drawn to my attention in his letter to me of 31st July 2020. He fairly accepted it should have been.
(vii) His client's position was that the defendant had searched for what was in the possession, custody or power of the defendant when the search was carried out. His client was not therefore in breach of the discovery order.
(viii) He also contended that sufficient material had been found which enabled a fair trial to proceed. This was because email accounts of other email account holders still on the States' systems had been searched and so that, as an example, while Miss Blackwood's account had been deleted, any of the accounts that still exist which contained emails received from or sent to Miss Blackwood had been searched and those emails had been disclosed.
(ix) He also emphasised the significant amount of documentation disclosed.
(x) He had not carried any analysis for the period from the time of the complaint made by Patient A until the GOC decide to investigate the complaint to see whether there were any documents might be missing. To be fair to Advocate Rondel I had not been provided with any such analysis by Advocate Jones either.
30. Finally, he reminded me of the three stage test in Hard Rock Limited & Anor v HRCKY [2020] JRC 173. That test required me to ask the following questions:-
(i) Firstly, I had to identify and assess the seriousness or significance of the failure to comply with an order.
(ii) Secondly I had to consider why any default had occurred.
(iii) The third stage was to evaluate all the circumstances of the case to deal justly with the application.
31. Advocate Rondel contended that in reality we were only dealing with a small number of emails which was why a fair trial could take place; the defendant had gone to great lengths to recover what they could. He argued this was a cynical attempt on the part of the plaintiff to obtain judgment in respect of innocent errors in the preservation of all relevant accounts.
32. Advocate Jones in reply emphasised the following:-
(i) It did not matter what the defendant had produced. What mattered was a failure to produce documents which could not now be assessed.
(ii) The issue was also not one of bad faith (Advocate Jones fairly accepted there was no bad faith in this case); the test was whether something had gone wrong; in this case there was a lack of competence on the part of the States which had led to breach of a court orders which required sanction.
(iii) In relation to the lack of information available from the defendant about compliance with RC17/07, this information should have been before the court. The fact that Advocate Rondel was unable to give answers to those questions went to the seriousness of the breaches by the defendant.
(iv) The defendant should have known on 15th April, 2020 what documents they had. By that stage key accounts had already been deleted which was enough to justify judgment being entered. The court could never safely conclude that it had the complete picture which was why granting judgment was justified.
33. There is serious force to Advocate Jones' criticism of the failure by the defendant to explain its document preservation policy where litigation was reasonably in contemplation or why the defendant only appeared to have started to take steps to preserve documents at the directions hearing on 15th April, 2020. Any party when proceedings are threatened should be taking steps to preserve documents. Likewise, any lawyer when instructed should be putting their client on notice of the obligation to preserve documents. This is clear from Practice Direction RC17/07.
34. Although RC17/07 was not in force at the time the plaintiff sent the first letter before action, the equivalent obligations in England were in force in relation to the obligation to preserve electronic documents. I therefore concluded that before reaching a final conclusion I wished to know what document retention policies were applied by the defendant generally, what policies, if any, were in place in relation to preserving documentation when legal proceedings were reasonably in contemplation and what notifications were given and to whom, when the letters before action were sent and when proceedings were commenced. The reported observations of the Chief Information Officer of the States not knowing what policies were in place to preserve data when litigation was threatened were and remain troubling.
35. I therefore ordered the defendant to file an affidavit within 14 days to answer these questions. Although this information should have been provided in the affidavits of discovery, I did not feel able to reach a conclusion without knowing the true position. In particular, I wanted to know whether what had occurred arose out of a lack of policies or procedures or a failure to follow existing procedures.
36. Subsequent to the hearing and reflecting on the submissions I had heard I also concluded that I required from both counsel an analysis of the emails disclosed for the period 29th June, 2016 until the end of 2016 to understand whether by reference to the events that occurred whether there appear to be any missing communications or periods of time where communications would be expected to have occurred but did not exist in this case.
37. I also required the defendant to clarify whether any additional emails had been disclosed pursuant to the discovery exercise above and beyond those disclosed to the plaintiff pursuant to the subject access request he made towards the end of 2016.
38. I sought this additional information because the first question formulated in Newman v De Lima [2018] JRC 155 requires me to assess the seriousness and significance of the failure to comply with any court order. Although prima facie there appears to have been a serious failure, I needed to assess whether that had been rectified by the disclosure exercise that had been carried out. I could not do that without the analysis I had requested.
39. In reaching this conclusion I did not ignore the force of Advocate Jones' submission that I may not know what has not been produced. However, I faced two opposing contentions which required me as far as possible to try to understand areas of evidence that might be missing.
40. This request also went to the third issue I had to determine which is that even if I concluded that any breach of the orders, I made was serious, I still had to satisfy myself whether a trial could fairly take place.
41. This was because in deciding whether or not to give effect to an unless order I still possessed a discretion. As an illustration in Powell v Chambers [2018] JRC 169, although the plaintiff was in breach of an unless order, I did allow relief from sanction in that case. The reason (see paragraph 91) for granting relief from sanction was because the sanction of striking out the entirety of the plaintiff's claim in that case was not a proportionate sanction to impose in the first place.
42. In this case the position was slightly different because the sanction of an unless order was proportionate at the time it was made because the defendant had already been allowed three and a half months to provide discovery. The present case was also not a total failure to comply, but a partial breach which in my judgment requires me to evaluate the impact of that breach.
43. The information I also requested subsequent to the hearing was also pertinent to the alternative ground relied on by the plaintiff in his summons, that to allow the matter to proceed to trial would be an abuse of process. I could not evaluate whether the discovery provided and the failure to search certain accounts was an abuse of process without analysing what had been provided.
44. The further (third) affidavit filed by Anna Adkins sworn on 28th October 2020 summarised the following:-
(i) She was responsible for ensuring that the legal responsibilities of the Minister/Department are efficiently controlled and discharged in a cost-effective manner in relation to civil claims.
(ii) This includes writing to staff identified as being involved in a civil claim to notify them of that claim and to ensure that as part of that notification, they were informed that their records should be preserved.
(iii) This was the first time to her knowledge that the process of discovery had involved staff who had left the Department.
(iv) It was her responsibility to ensure that when an employee was involved in a claim has ceased working for the Department, their electronic records and emails were identified, downloaded and preserved.
45. Ms Adkins also described the following policies that were in force at the time of the events that have led to the current dispute as follows:-
(i) The Corporate Records Management Policy. Paragraph 8 of the up-to-date policy identifies that records required for litigation had to be preserved and the normal routine of destruction of records was to be suspended.
(ii) Paragraph 8 of a draft Email Records Management Policy which Miss Adkins said was in force contained the statement that an effective policy helps ensure that "evidence in legal proceedings or criminal investigations is available".
(iii) Paragraph 3.3 of the Email Policy described that the central email system is supported by a forensic email archiving system which stores all messages (except spam) for a maximum of two years. This system is solely designed to support dispute resolution and legal discovery and "must not be relied upon for day to day record keeping purposes".
(iv) Miss Adkins also referred to an Email Good Practice Guide which also referred to the forensic email archiving system.
(v) The affidavit further referred to a Retention Schedule which inserted a time limit of ten years for litigation dossiers.
46. Most significantly Miss Adkins accepted in relation to the present proceedings that she had not written to any of the employees in relation to data retention. Paragraphs 19 and 20 of her affidavit state as follows:-
"19. I did not write to the relevant employees in relation to data retention as I ordinarily would have done. I can only explain this omission as being as a result of the substantial document retention exercises which had already taken place in respect of this dispute and therefore I did not consider contacting the relevant individuals in relation to document retention, or to ask them to preserve their documents and records in circumstances where they had already been subject to certain disclosure requirements. Whilst I should have nonetheless written to the relevant employees, and put them on notice to retain all of their documents and records, the complaints made by the Plaintiff and the necessity for internal investigations to be conducted, as well as the Subject Access Request and the States Complaints Board hearing, led to a large amount of documents, and indeed the documents which go to the heart of the Plaintiff's dispute with the Defendant, being retained and indeed disclosed to the Plaintiff.
20. I regret having not taken further steps to ensure that all electronic records and emails in respect of this case were identified, downloaded and preserved. However, I reiterate that this was not intentional."
47. Advocate Jones in subsequent written submissions was particularly critical of this affidavit albeit accepting that evidence had not been preserved on purpose and that he was not making allegations of bad faith. His criticisms were as follows:-
(i) That the defendant had allowed evidence to be destroyed in the circumstances where that evidence should have been preserved.
(ii) The defendant had not followed its own procedures.
(iii) The defendant had failed to adhere to Practice Directions RC17/07 and 17/08 to preserve documents.
(iv) Both the Corporate Records Management Policy and the Email Records Management Policy (assuming it was in force) had not been followed.
(v) The forensic email archiving system was not fit for purpose because it only stored messages for a maximum period of two years. This did not sit with the applicable limitation periods for claims in tort which were three years from the date of damage and claims contract which had ten years from the date of breach. Even a properly amended policy would have failed the stated purpose of preserving records.
(vi) The decision not to write to individuals involved was a conscious decision which was not justified.
48. Discovery as is well-known is a serious obligation because in most cases it forms a key part of the evidence before a trial court. It is often the material by which the court tests oral evidence or assertions, or submissions made by a party. In this case it is particularly significant because the allegations made against the defendant are that public officials on behalf of the defendant acted with reckless indifference to the plaintiff.
49. As set out in paragraph 84 of my previous judgment dated 17th February 2020 reported at [2020] JRC 029 in this matter, only cross-examination of the individuals will indicate why they acted in the way they did and why they failed to follow the defendant's policies. What is recorded in any contemporaneous documents assuming full discovery, will play a significant role in relation to any such cross-examination. Whether that can still safely occur is a question I return to later in this judgment.
50. In Newman v De Lima [2018] JRC 155 I explored what the approach should be to breaches of an order. Both counsel agreed that the appropriate test to be followed is as follows:-
(i) To identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order;
(ii) Why the default occurred and whether it is excusable; and
(iii) Whether a breach means that the case can still be dealt with justly and at a proportionate cost.
51. In relation to the final question in paragraph 47 of Newman I also observed as follows:-
"However, I consider that I am also required to look at the case as a whole and the nature of the proceedings in particular, what is in issue where some form of strike out of a claim is contemplated."
52. Paragraph 47 then continued as follows:-
"In cases involving a failure to issue a summons for directions (albeit pre-dating the overriding objective), the Royal Court has noted that the most severe sanction of striking out a plaintiff's claim should not be applied if there are other sanctions which could be applied which would enable justice to be done between the parties - see for example Viera v Kordas [2014] JRC 042 at paragraph 19 and Mayhew v Bois Bois [2016] JRC 024 at paragraphs 8 and 9. Whether the failure is to issue a summons for directions required by the Rules or a failure to comply with a particular order, I consider that the same approach should be taken to imposition of sanction which has the effect of striking out a claim or counterclaim or an answer, thus depriving a party of their day in Court."
53. The analysis continued in paragraphs 48 and 49 as follows:-
"48. I also consider it may be possible to make orders which fall short of striking out the entire claim. Depending on the breach it may be possible to limit the sanction to striking out part of a case or that if a particular step is not complied with part of the case will be struck out or evidence may not be adduced on a particular issue. There is also the sanction of costs.
49. I have referred to these different possibilities available to the Court because they are all illustrative of the more general discretion available to the Court where a party has not complied with a Court order. In reaching this view, it should not be forgotten that procedure is a means to an end namely a trial or settlement and breaches should be kept in that context. The key issue is therefore the effect of any non-compliance and whether or not a fair trial can take place after a breach. I accept I have to also take into account, if it is right to impose a sanction for non-compliance, whether that non-compliance was either deliberate or there is no justification for it. In every case there will always come a point where the conduct of a party in ignoring Court orders will lead to the ultimate sanction of a case being dismissed even if a trial could still take place. This judgment should not therefore be taken as any indication that non-compliance of any Rules and Practice Directions is acceptable, will be tolerated, or will not, in appropriate cases lead to the ultimate penalty of a claim or answer being struck out."
54. In relation to the present case, the defendant is firstly in breach of paragraph 4 and the schedule to the Act of Court of 15th April 2020. The email accounts required to be searched have not been searched because they had not been preserved by the defendant prior to the making of the order.
55. This breach is serious because, as noted above, discovery plays a significant role in relation to the resolution of the vast majority of disputes before the Royal Court.
56. In this case the breach is more serious because the defendant has failed to follow its own policies and procedures, such as they are, and has failed to adhere to the requirements of Practice Direction RC17/07. Paragraphs 3 to 5 of that Practice Direction provide as follows:-
"3. As soon as a party is aware that litigation is contemplated, that party must immediately take all reasonable steps to ensure that potentially discoverable documents are preserved.
4. As soon as a party retains a legal representative, that legal representative must inform its client of the need to preserve all potentially discoverable documents.
5. The party and its legal advisers in either case shall take all reasonable steps to ensure that no potentially discoverable document is destroyed pursuant to any document retention policy or otherwise in the ordinary course of business."
57. In this case the defendant had at least four separate opportunities to preserve documents:-
(i) When the plaintiff wrote to Senator Green on 20th November 2016 complaining of the Jersey's handling of the matter and asserting that the actions of Senator Green had caused him upset and damaged his reputation and loss of earnings. I consider that litigation was in reasonable contemplation at this stage given the assertions of damage to reputation and loss of earnings.
(ii) If litigation was not in reasonable contemplation when the plaintiff complained at the end of 2016 including making a subject access request for relevant documents, litigation was clearly in contemplation when a letter before action was sent on 28th March 2017. I do not regard the fact that this letter was threatening defamation proceedings in England as significant. The underlying factual complaint namely a referral by the defendant of the plaintiff to the GOC was at the heart of the threatened proceedings. The obligation to preserve potentially discoverable documents should have been triggered on receipt of this letter at the latest.
(iii) Further opportunities were missed when Advocate Jones sent his letter before action dated 13th December 2018 and when proceedings were served in July 2019.
(iv) If the defendant had applied, its own policies properly either when the plaintiff first complained or when the first letter for action was sent then all of the email accounts would have been preserved. Even if steps had been taken as late of service of the proceedings the email accounts of the most significant individuals involved i.e. Senator Green and Miss Blackwood could have been preserved using the back-up tapes I am now informed are in place.
58. I cannot let this judgment pass also without observing that the policy of only preserving emails for two years is difficult to understand. The relevant limitation periods for claiming negligence are three years from the date damage is suffered and ten years from the date of any breach of contract. The current policy therefore runs the risk of the defendant in the future being in further breach of what is expected by Practice Direction RC17/07 and RC17/08 because documents are not preserved for potentially relevant periods.
59. I also do not understand the contention that this is the first occasion upon which a dispute has involved former employees or members of the Department of Health, and in this case a change individual acting as the defendant. I take both judicial notice of the fact that the services provided by the Minister of Health are significant and involve large numbers of people. Inevitably there will be changes of personnel for individuals working for or on behalf of the defendant. I would therefore encourage those assisting the defendant in the area of data management and preservation to consider whether their policies and procedures are sufficiently robust enough to capture all relevant information as is required. This includes whether the policies actually lead to relevant data being preserved rather than statements that such data should be preserved. The policies I was referred to do not describe any process to ensure that relevant documents are preserved when litigation is in reasonable contemplation. All they appear to describe is that individuals are notified of an obligation to preserve documents. There does not appear to be any process to ensure this actually happens. Nor does writing to individuals address the problems of preserving documents in particular email accounts when people leave. Writing does not avoid the risk of individuals involved removing relevant but damaging or unhelpful documents or trying to do so. Unless the concerns referred to in this paragraph are addressed, in future cases involving the Minister of Health or indeed the government of Jersey, similar breaches of practice directions on discovery might well occur. This would not be acceptable.
60. Turning to the question of the seriousness of the breach, as soon as the order was made on 15th April 2020, the defendant was already in breach. Matters were made worse because it appears that it took three months for steps to be taken to obtain the email accounts of the individuals listed in the schedule. This delay meant that between the order being made and access being provided to email accounts, the email accounts of Sara Zohhadi; Fon Roberts and most importantly Christine Blackwood which had been preserved on the back-up tapes were lost.
61. In respect of the Act of Court dated 6th August 2020, the defendant was also never going to be able to comply with paragraph 2 because of the ten email accounts that had already been deleted with no prospect of recovery. At the time of this order the defendant also knew that it could not provide discovery from these ten accounts.
62. The defendant's argument was that the unless order only applied to paragraph 2 of the Act of Court of 15th April 2020 which required a list of documents by 31st July 2020 which list was provided. However, paragraph 4 of the same Act stated:-
"4. the email accounts to be searched by the defendant as part of its discovery exercise are listed in Part 1 of the Schedule to this order..." [Emphasis Added].
63. In other words, paragraph 2 of the Act of Court of 15th April 2020 should therefore be read as being subject to paragraph 4, and indeed paragraphs 5 and 6, which paragraphs define the search terms to be used and the date range for those searches. Paragraph 2 is therefore overarching order giving effect to the detailed mechanisms required to ascertain discoverable documents as set out in paragraphs 4 to 6. By 6th August 2020, the defendant knew that those detailed mechanisms could not have been applied to ten email accounts and therefore it could not provide discovery from those accounts.
64. I should therefore have been told prior to making the order of 6th August 2020 that ten email accounts had been lost irretrievably and that what was expected by the Act of Court of 15th April 2020 in terms of what searches were going to be carried out and which email accounts were going to be searched, could not be given effect to. This is a very serious failing. I should also have been provided with the detailed explanations I have now received.
65. Returning to the second question formulated in Newman, is there any excuse for these breaches? In my judgment there is not because had the defendant applied its own policies and procedures then the relevant documents would have been preserved. The defendant should also have come to court with the information that has now been provided. It should not have taken an order from me requiring such information to have led to its production and the admissions now made. This is particularly troubling when the defendant is a government minister.
66. There is therefore no justification for the breach and to be fair to the defendant, Miss Adkins in her third affidavit did not advance any justification for failure to preserve email accounts.
67. I now turn to the third question. In Powell v Chambers [2018] JRC 169 which followed on shortly after from Newman I had to consider whether breach of an unless order should lead to the plaintiff's claim being struck out. At paragraph 63 of Powell I cited the White Book 1999 Edition in respect of an unless orders as follows:-
"The court, when considering an application to strike out proceedings following a party's failure to comply with an unless order should look at the overall justice of the matter. The Court of Appeal consider what the proper test ought to be for a striking-out where a party was in breach of an unless order and consider the cases of Allen v. McAlpine & Son Ltd; Birkett v. James; Tolley v. Morris; the Jokeri case; Carribbean General Insurance v. Frizzell Brokers; Costellow v. Somerset County Council."
68. I observed that each case had to be considered on its own facts but that the underlying approach might be encapsulated by the following:-
"An unless order was an order of last resort, not made unless there was a history of failure to comply with other orders. It was the party's last chance to put its case in order.
Because it was the last chance, a failure to comply would ordinarily result in the sanction being imposed.
The sanction was a necessary forensic weapon which the broader interests of the advanced to exonerate the failure.
It seemed axiomatic that if a party intentionally flouted the order he could expect no mercy.
A sufficient exoneration would almost invariably require that he satisfied the court that something beyond his control had caused the failure.
The judge would exercise his judicial discretion whether to excuse the failure in the procedural inefficiencies causing the twin scourges of delay and wasted costs. The public administration of justice to contain those blights also weighted heavily. Any injustice to the defaulting party, though never to be ignored came a long way behind the other two. (Hyler Information Systems Ltd v. County City Council, [1997] 1 WLR 1666, CA)."
69. If those were the rules applicable in this jurisdiction, the unless order would take effect because what has caused the failure to provide discovery of the relevant accounts was not beyond the control of the defendant.
70. However, in the same judgment, as in Newman, I concluded that the court possessed a more general discretion (see paragraph 67 and 68).
71. On the facts of the Powell case, the whole reason for refusing relief from sanction and not giving effect to the unless order was because I was concerned that the sanction of a total strike out of the first plaintiff's claim for not providing discovery was not a proportionate sanction. The present case by contrast is not a question of a party failing to provide discovery in respect of part of the claim, but rather is a failure to search email accounts relevant to the entire issue of liability. One of those email accounts is in respect of one of the individual public officers named, and another is the former Minister of Health; a third is the person who prepared the response on behalf of the defendant to the States Complaint Board and the fourth was the Civil Servant in overall charge of Health at the time of the matters complained of. The omission of searches of these accounts is extremely serious.
72. In my judgment, I have to balance these extremely serious and inexcusable breaches against what discovery has been provided in order to decide whether I should vary the effect of the unless order. Therefore I asked both parties for an analysis of the defendant's discovery to try to ascertain whether the material disclosed told the whole or most of the story so that a trial could proceed safely or whether there might be significant gaps in respect of material disclosed such as to prevent a fair trial.
73. In making this order I did not ignore the concerns of Advocate Jones that it might not be possible to identify what had not been produced, even by an analysis of what had been produced; nevertheless given the rival contentions, while paying heed to this concern, I still felt that it appropriate to request the parties to attempt such an analysis.
74. Advocate Jones analysed the following as missing documents. For ease of reference I have simply referred to the number of the document in the lists provided by the defendant. I should also add that lists of documents in separate sub-categories by the defendant was not helpful and did not make the task of evaluating what had been provided straightforward. One single chronological list, as is required by practice direction RC 17/07, should have been provided.
75. The criticisms by Advocate Jones were as follows:-
(i) Document A6 was said to be incomplete;
(ii) Document A15, which is an email from Christine Blackwood to Susan Devlin, referred to Mary Campfield having contacted the GOC. Yet, no discovery of any such communications between Mary Campfield and the GOC have been disclosed; this observation was also made in respect of document A29;
(iii) A47 is missing; and
(iv) A146 refers to missing information.
76. Advocate Jones also referred to a number of documents with missing attachments. The defendant's analysis in response however makes clear that these attachments have been listed and where they are listed.
77. In relation to analysis of other categories of documents that appear to be missing Advocate Jones contended as follows:-
(i) Document A1 referred to other individuals previously unknown to the plaintiff and to earlier correspondence prior to the date of this email.
(ii) In respect of document A2 again further individuals are listed; Advocate Jones also complained about any communications leading to the setting up of this meeting not having been disclosed.
(iii) Document A8 is a chain of emails which contains an email sent by patient A which refers to a 'Linda'. Document A8 was sent by Senator Andrew Green's assistant. The question was raised as to what views were expressed by Senator Green around this time.
(iv) The same criticism was made in respect of document A9.
(v) Document A15 refers to prior discussions between Susan Devlin and Senator Green; the complaint was that there were no other emails disclosed between them or any file notes or any other documents recording any such discussions.
(vi) By reference to document A21 although Gavin Hendricks was a search term there were no documents produced from Gavin Hendricks until December 2016;
(vii) The role of Val Howard identified in document A22 was not known.
(viii) Document A27 refers to a Linzi Mudge whose account had not been searched. Nor was the reference to "partner report" understood and no such report had been produced.
(ix) It was not clear if Senator Green ever responded to document A28.
(x) In respect of document A29 it was not clear what the Minister's instructions were and whether these were recorded in writing.
(xi) Document A33 refers to Rose Naylor. It was not clear whether she possessed any other documents although she was a search term.
(xii) Document A34 is an email to Anna Adkin. There was no response containing any advice in respect of this email. It was also not clear whether privilege is claimed in respect in respect of any such advice.
(xiii) In respect of document A53 complaints were made about the lack of any communications involving Gavin Hendricks, Chris Dunne Lorraine Wells and between Anna Adkins and Mary Campfield.
(xiv) In respect of document A122 further individuals were named whose role was not known and whose accounts had not been searched. The same applies to names in documents A124 and A127.
(xv) There were no further notes of any conversations or discussions with Dr Mair (documents D1 and A139).
(xvi) In respect of document A142 a further individual was identified.
(xvii) Document A147 identified another individual.
78. The defendant provided firstly a schedule identifying whether there were any other emails with documents and emails disclosed by the defendant which had not been disclosed. This led to the following analysis:-
(i) In respect of document A86 another document was referred to but it was said to relate to a separate safeguarding referral and therefore was not relevant.
(ii) Document A85 referred to an email from CSS Quality Assurance Officer to Leslie Wilson, which has not been included in the list of documents. The defendant suggests this may be the information referred to in A15. The same document is referred to in documents A142 to A145.
(iii) In respect of document A17 no further emails referred to between Mary Campfield and Lorraine Wells have been disclosed. This reply also covered documents A146 and A18 to A25.
(iv) In documents A5 and A154 an apology letter from Mary Campfield to patient A was missing although the defendant believes that two versions may have been disclosed at document B32.
79. The defendant then produced a further analysis setting out whether by reference to key periods of times or dates there were emails where there were documents which would be expected to exist but where there were few such emails or documents. However, the analysis simply referred to the documents relied on by the defendant rather than whether there were documents that might be missing or whether there were missing categories of documents. This was not what I had requested and the response did not provide any real assistance or analysis.
80. Finally, the defendant provided a schedule listing 128 documents which had either not been disclosed at the time of the plaintiff's subject access request or where in respect of a few documents there had only been partial disclosure because the document had been redacted or heavily redacted.
81. In respect of the analysis received, firstly, the discovery exercise has produced more documents than those disclosed to the plaintiff under the subject access request made in 2016. Why that is the case is not clear, but that is not relevant to the decision I must reach. The production of this additional material shows that the discovery exercise has not been a pointless task or a repetition of material simply produced (albeit unredacted). Rather it has led to additional material being produced.
82. In relation to the criticisms set out by Advocate Jones, having considered these carefully these criticisms have the nature of specific discovery requests. In respect of Miss Campfield, Dr Hendricks and Leslie Wilson, these individuals remain working for the Department of Health. The specific criticisms are therefore capable of being evaluated by the defendant and answers provided to the legitimate concerns raised.
83. The same applies to the identification of further individuals from the documents where searches would appear to be appropriate if individuals have been involved.
84. It is also right to set out that of the five individuals named in the order of justice against whom the plaintiff's complaint is directed, four of those have had their email accounts searched and they can be reviewed again in light of Advocate Jones' analysis.
85. As against the above, the email accounts of Miss Blackwood and Senator Green have been deleted who are the two most important individuals involved and cannot be recovered. Miss Blackwood in the order of justice is described as Head of Professional and Care Regulation and Senator Green was of course the Minister at the relevant time. It is Miss Blackwood, following the safeguarding meeting on 8th July 2020 who sent an email (which has been disclosed) that it had been agreed that the plaintiff would be referred to the GOC. She remained involved and is mention at paragraphs 21 and 27 of the order of justice. Her involvement is not in dispute. Rather the fundamental issue is why a referral was made to GOC without first consulting the plaintiff in breach of the defendant's own policies. Had the defendant acted promptly and had applied its own policies then communications from Senator Green or Miss Blackwood or any documents recording the same solely in their possession would have been made available to the plaintiff relevant to this central issue.
86. The failure to preserve Miss Blackwood's account is the most troubling because she was one of the decision makers and the most senior person involved who decide to make a referral. Senator Green, although the Minister of Health at the time only appears to have become involved after the plaintiff complained, and so what is most pertinent is what he may have been told about why a referral had been made. The same applies to other missing accounts as their involvement is about the handling of the plaintiff's complaint including the complaint to the States Complaint Board and they were only involved after the decision to refer has been made.
87. In Leeds United Football Club v Admatch [2011] JRC 016A in relation to whether or not a case should be struck out at paragraph 35 Sir Michael Birt, Bailiff stated the following:-
" I draw from the above authorities the conclusion that it is a strong thing to strike out a defence and there must be an abuse of process such as to render further proceedings unsatisfactory or prevent the court from doing justice or, to quote Page Commissioner, a party must have flouted or ignored the Court's orders or persistently conducted himself in a way that evinces an unwillingness to engage in the litigation process on an equal footing with the other parties."
88. In this case although I am extremely troubled as set out above by parts of the defendant's conduct and its failure to preserve documents, I do not consider that this conduct convinces me of the unwillingness to engage in the litigation process on an equal footing with other parties. In addition, a significant number of documents have been disclosed so that a large part of the factual matrix is known. Discovery has been provided from four of the five individuals named in the order of justice. Some emails sent to Miss Blackwood have also been recovered and disclosed from other email accounts. Furthermore, the duty of discovery is ongoing. The queries raised by the plaintiff which I have summarised above do require further investigation by the defendant both by further searches and by making enquiries of the individuals who may have sent or received the relevant emails. This may produce a fuller picture. Lawyers were also involved in both the defamation proceedings and the States Complaint Board hearing and so, if their files have not been reviewed already (as they should have been) they can be reviewed now for any relevant material. I have therefore concluded on balance however that a safe trial can still proceed notwithstanding the serious and inexcusable breaches that have occurred and so I should not the unless order to take effect even though in part it has been breached. I stress however that this has not been an easy decision and I came very close to allowing the unless order to take effect and the answer on liability to be struck out. If the Defendant's procedures do not change to comply with the relevant practice directions in future cases, the same forbearance may not be shown.
89. However, as the price for being allowed to continue to defend the claim the defendant must answer the additional queries raised by Advocate Jones and must do so at its own expense. The defendant must also produce a list of documents listing each document in chronological order without using separate sub-categories, again at its own expense. In addition, if the files of previous legal advisers have not been searched, then they should be.
90. Furthermore, the information that has now emerged for this application should have been disclosed in respect of the application that led to the Act of Court of 6th August 2020. The defendant must therefore also pay the plaintiff's costs of and occasioned by this application and the plaintiff's costs incurred leading to the Act of Court of 6th August 2020 on an indemnity basis. This is to express my displeasure at the serious breaches that have occurred and the failure to draw these to my attention prior to the last hearing. Had that occurred the hearing would have proceeded on a very different basis.
91. Finally, when this judgment is handed down, I will hear submissions from the defendant as to the period of time required to answer the plaintiff's searches. However, this will not be a significant period and I expect every effort to be made to carry out the further searches that Advocate Jones' criticisms justify.
Authorities
Huda v Minister for Health and Social Services [2020] JRC 029.
Practice Direction RC17/07.
Hard Rock Limited & Anor v HRCKY [2020] JRC 173.
Newman v De Lima [2018] JRC 155.
Powell v Chambers [2018] JRC 169.
White Book 1999 Edition.