Jersey Unreported Judgments

Discovery

[2024]JRC104

Royal Court

(Samedi)

7 May 2024

Before     :

Advocate David Michael Cadin, Master of the Royal Court.

 

Advocate J Barham for the Plaintiff.

Advocate J. D. Garrood for the Second to Fourth Defendants.

The Fifth to Seventh Defendants did not appear.

judgment

the MASTER:

1.        This is my judgment in relation to an application by the Plaintiff against the First to Fourth Defendants (known as the "ASG Defendants") for specific discovery.

Background

2.        By an Order of Justice dated 21 December 2022, the Plaintiff, Rassmal Investments Limited ("Rassmal"), instituted proceedings against:

(i)        the First Defendant, a closed joint stock company formed in the Kingdom of Saudi Arabia and known in the proceedings as "ASG;"

(ii)       Abdullah and Mubarak Al Suwaiket (the Second and Third Defendants) who were directors of ASG;

(iii)      the Fourth Defendant (known in the proceedings as "MAMS") which is owned by the First Defendant; and

(iv)     the Fifth to Seventh Defendants, known as the "VCI Companies".

3.        Although the factual details underpinning the claim are complex, for the purposes of the application before me, it suffices to note that Rassmal's allegations arise out of a joint venture type arrangement between it and ASG entered into in about June 2017 for a property development project in London called Vauxhall Cross Island.  ASG invested into the project and in return, received shares in the VCI Companies which were in the process of purchasing the property.  Further monies were loaned into the structure in 2018 and as part of the arrangements, ASG took security over Rassmal's shares in the VCI Companies.  It is alleged that subsequently MAMS was incorporated on 12 March 2020 and in May 2020, ASG enforced its security against Rassmal and purportedly sold the Plaintiff's shares in the VCI Companies to MAMS, at a significant undervalue.  In so doing, Rassmal alleges that the ASG Defendants acted unlawfully and amongst other things, ASG breached its obligations under Article 46 of the Security Interests (Jersey) Law 2012.

4.        The claims are denied by the Defendants.

5.        In July 2023, the Court directed the parties to agree the scope and nature of searches for discovery:

(i)        by a letter dated 28 September 2023, Advocate Garrood for the ASG Defendants set out the approach that they proposed to adopt on discovery.  He made no reference to valuers or other corporate service providers but stated that in addition to relevant hard copy documents, specific search terms would be applied to electronic documents, albeit that the document universe would be limited to a date range and five custodians, namely Ms El Diry the Managing Director of ASG, the Second and Third Defendants, and two directors at Crestbridge, which provided corporate services to MAMS;

(ii)       in their response dated 2 October 2023, Rassmal's Advocates requested that the directors at Crestbridge search for documents before MAMS was incorporated as it was likely to have been approached in relation to the formation of MAMS;

(iii)      separately, by a letter dated 28 September 2023, Rassmal's advocates made a request for further information under RCR 6/15 seeking copies of the valuations reports made by BDO LLP and Gerald Eve LLP in relation to the Vauxhall Cross Island site and referred to in the Defendant's pleadings.  This request was refused but the Defendants noted that the valuation reports would be disclosed "in the course of a proper and orderly discovery process"; and

(iv)     in my judgment, the discovery protocol agreed by the ASG Defendants with Rassmal was as set out in Advocate Garrood's letter but extended firstly to the valuation reports made by BDO LLP and Gerald Eve LLP and secondly, to documents in the possession of Crestbridge predating the incorporation of MAMS.

6.        On 3 October 2023, the Court made an order for discovery by affidavit and list.  The ASG Defendants completed discovery by mid-December 2023, with affidavits of discovery being sworn by the Second Defendant personally on his own behalf and on behalf of the First Defendant, by the Third Defendant and by Mr Hind, a director of the Fourth Defendant.  Each of those affidavits contains the endorsement required under paragraph 20 of Practice Direction RC 17/07, signed by Advocate Garrood.

7.        According to Advocate Barham for Rassmal, the Plaintiff's Advocates identified gaps in the discovery provided by the First to Fourth Defendants and set out those concerns in correspondence in early January and February 2024.  That correspondence did not resolve the issues and Rassmal issued a summons for specific discovery on 14 March 2024 seeking disclosure of various classes of documents, together with further affidavits providing additional information about mobile phones and email accounts.

8.        By the date of the hearing, the issues had narrowed but together with the request for information, 3 categories of documents remained in dispute, namely:

(i)        all correspondence, notes, drafts and other documents sent to, received from or produced by BDO LLP, Gerald Eve LLP or any other valuer approached, consulted or engaged by or on behalf of the First Defendant, whether directly or indirectly (through King & Spalding LLP or otherwise) to value the land at Vauxhall Cross, London ("VX"), the shares in VCI Limited, VCI Property Holding Limited, or VCI Intermediate Limited (collectively, "VCI") or advise on any tax issues relating to VX or VCI (the "First Category");

(ii)       all correspondence, notes, drafts and other documents sent to, received from or produced by Ocorian Limited, Crestbridge Limited or any other trust and corporate service provider approached, consulted or engaged by or on behalf of the First Defendant, whether directly or indirectly (through King & Spalding LLP or otherwise) to incorporate or provide services to a special purpose vehicle to hold shares in VCI or indirectly hold VX (the "Second Category"); and

(iii)      all correspondence between Ibtissam El Diry, the Second Defendant and Third Defendant relating to VX or VCI, whether by email, text message or any other medium (the "Third Category").

9.        After the summons was issued, there appears to have been no further engagement between the parties.  On 4 April 2024, Advocate Garrood provided the Plaintiff with a copy of an unsworn affidavit from the Second Defendant who stated that:

"12. Following the Plaintiff's request for specific discovery, the First Defendant has, through JTC Law, requested that Gerald Eve LLP and BDO LLP search their files and produce copies of all email communications passing between them and any other persons with e-mail addresses with the following domains: @alsuwaiket.com @KSLaw.com @careyolsen.com @jtclegalservices.com.

13. Both Gerald Eve LLP and BDO LLP had previously been requested to provide copies of all documents annexed to their reports and additional documents provided to them for the purposes of the preparation of their reports. Those documents have already been disclosed to the Plaintiff. The additional disclosure sought is intended to ensure that any further relevant correspondence (which has not already been disclosed from the searches which the ASG Defendants have undertaken of the documents in their possession or custody) is disclosed. In essence this has been done to ensure that the Plaintiff will have a complete set of the communications passing between the First Defendant (whether directly or indirectly) and Gerald Eve LLP and BDO LPP.

14. Gerald Eve LLP has produced to the First Defendant copies of the email communications which it holds. These documents are in the process of being uploaded to the e-discovery platform being used by the ASG Defendants for a de-duplication exercise to be undertaken against the documents already reviewed for disclosure and for a production review exercise to be undertaken. The review exercise being undertaken is to ensure that no documents which are unrelated to VX and/or VCI have been inadvertently included in the documents produced by Gerald Eve LLP.

15. BDO LLP has agreed to undertake a search of its records to produce the email communications requested. Upon receipt from BDO LLP of the email communications which it holds, I understand from JTC Law that it is intended that these documents will be processed and reviewed in the same way as described in paragraph 14 above."

10.     Rassmal remains unsatisfied by the steps taken by the ASG Defendants, particularly now that Advocate Barham has reviewed the additional disclosure and identified gaps.

Specific Discovery

11.     The test for specific discovery is well known.  As Master Thompson held in Vilsmeier v AI Airports International Limited [2014] JRC 101:

"9...The leading case is Victor Hanby Associates Limited v Oliver [1990] JLR337. The relevant principles in Hanby were cited more recently in Trust Corporation Limited & Ors v Barclays Private Bank and Trust Limited [2007] JRC043. In summary on a specific discovery application the applicant is required to show: -

(i)  There is a prima facie case that the defendant has, or has had, documents which have not been disclosed;

(ii)  Where there is a prima facie case of non-disclosure, the documents in question must be relevant to matters in issue in the case. Relevance is determined, primarily, by reference to the issues pleaded;

(iii) If a prima facie case of possession and relevance is made out, the court has to consider whether an order for specific discovery is necessary for disposing fairly of the case."

12.     However, since the decisions in Victor Hanby Associates Limited and indeed, since the Master's decision in Vilsmeier, the scope and extent of discovery in Jersey has changed immeasurably with the focus moving from hard copy documents filed in a specific, labelled location to electronic documents, in a variety of forms, scattered across systems and custodians.  The Royal Court's Practice Direction on discovery was updated in 2017 by Practice Direction RC 17/07 and the Court reiterated that a party's discovery obligation is absolute and constrained only by relevance, and that in giving discovery, parties have to carry out a reasonable search for documents.  At the same time, Practice Direction RC 17/08 was issued to deal with the ever-increasing challenges presented by electronic documents.  It does not modify the extent of the obligation set out in Practice Direction RC 17/07 and must be read alongside it.  Relevant electronic documents must be disclosed, and parties have a continuing obligation so to do.  The Practice Direction gives guidance of the Court's expectations of parties in relation to documents in electronic form.

13.     In my judgment, when considering applications for specific discovery arising in relation to documents held in electronic form, and in particular whether production is necessary, the Court must take into account what was previously agreed between the parties, or ordered by the Court, by way of the discovery protocol.

14.     Discovery protocols are not set in stone (as Master Thompson held in Lucaya Trustees Limited and Anor v Vistra Trust Company (Jersey) Limited [2021] JRC 320, they can be amended or varied).  However, in complex civil litigation cases (of which this case is an example), discovery protocols are frequently the product of significant work by the disclosing party, enormous scrutiny by the receiving party, some negotiation, and detailed consideration by the Court.  If such protocols are agreed by the parties and/ or ordered by the Court, they provide a benchmark for what constitutes a reasonable search, in line with the Overriding Objective and in the context of the particular litigation.  That reasonable search should produce the documents necessary for the purposes of the litigation, albeit that as anticipated in paragraph 17(a) of Practice Direction RC 17/08, it may not produce all of the relevant electronic documents.

15.     If issues or queries arise in the course of discovery, the Court would expect the parties to discuss such matters in accordance with their obligations under, and the guidance given by, Practice Direction RC 17/08.  In so doing, the starting point should be the discovery protocol agreed between the parties or ordered by the Court rather than the application of unilateral, ad hoc solutions.

First Category

16.     In December 2023, the ASG Defendants swore affidavits exhibiting lists of documents which they said accurately identified the relevant documents in their possession, custody, or power.  Those affidavits contained an endorsement from Advocate Garrood stating that he was satisfied the ASG Defendants had complied with their discovery obligations.  Yet barely 4 months later, having carried out a unilateral search of further document sources, the ASG Defendants disclosed additional relevant documents.  They did so under cover of affidavits describing the searches carried out but not containing any explanation as to why these document sources had not been considered previously, nor any further averments by them or endorsements by their advocate, that they had complied with their discovery obligations.

17.     In my judgment, this was not the correct approach:

(i)        Practice Direction RC 17/08 requires parties to cooperate about disclosure of electronic documents and that obligation complements the parties' continuing obligation of disclosure. Accordingly, rather than alighting unilaterally on a potential solution to a problem, the ASG Defendants should have engaged with the Plaintiff as soon as the issues were identified;

(ii)       the starting point for that engagement should have been the ASG Defendants' existing discovery protocol and in particular whether it could, or should, have been flexed to include new custodians (BDO LLP and Gerald Eve LLP) or applied to a limited cohort of additional documents (the documents which the ASG Defendants could compel BDO LLP or Gerald Eve LLP to produce to them).  The advantage of applying the existing protocol is that not only has it been the subject of proper consideration by the parties and/or the Court, but if it is applied, that party's approach to discovery will be consistent across all document sources.  If the existing protocol was insufficient to deal with the issue, the parties could, and should, have proceeded to consider what alternative approach would have been appropriate, in accordance with the Overriding Objective and consistent with the guidance in the Practice Direction.  In my judgment, those discussions could have occurred notwithstanding the ASG Defendants' initial stance that the additional discovery was irrelevant.

(iii)      rather than discussing the approach with the Plaintiff, or even applying the date range and/or search terms set out in their previously agreed discovery protocol to ascertain what might be responsive, the ASG Defendants unilaterally instructed BDO LLP and Gerald Eve LLP to search for "email communications passing between them and four other email domains".  There is no evidence before me of any empirical assessment of the likely efficacy of such a search as against the existing discovery protocol, notwithstanding paragraph 17 of Practice Direction RC17/08;

(iv)     further, unlike the initial disclosure exercise which was carried out by the ASG Defendants and their advocate in conjunction with their eDiscovery provider, it appears from the comments in their Skeleton Argument ("BDO LLP agreed to search for the relevant emails and has identified 5000 documents which BDO LLP is reviewing for relevance" and "Gerald Eve LLP agreed to search for the relevant emails and identified 207 disclosable emails and attachments") that the ASG Defendants may have delegated the discharge of their discovery obligations to BDO LLP and Gerald Eve LLP.  In my judgment, wherever practicable, such delegation should be avoided, no matter how capable the delegee.  It runs contrary to paragraph 4(d) of Practice Direction RC 17/08, undermines the element of consistency in the disclosure process, introduces a further potential point of failure and makes it difficult for the endorsement required under paragraph 20 of Practice Direction RC 17/07 to be meaningful; and

(v)      if a party identifies relevant documents after having sworn an affidavit of discovery, they must meet the obligations set out in Practice Direction RC 17/07 and swear a supplemental list, verified by affidavit and containing the requisite endorsement.  That affidavit must set out in sufficient detail why the Court, and the other parties, can now place confidence in their assertions that discovery is complete given their previous deficient assertions.

18.     In this case, no such affidavit has been filed nor has any supplemental list of documents been exhibited.  In my judgment, unless and until one is filed, issues of specific discovery do not arise. Instead, the Court must approach this as an application to vary the ASG Defendants' discovery protocol to deal with the new sources.

19.     The ASG Defendants submit that:

(i)        the First Category extends far beyond documents within the custody, power or possession of the ASG Defendants and in effect, the request for "all correspondence, notes, drafts and other documents...produced by BDO LLP, Gerald Eve LLP" amounts to a request for BDO LLP or Gerald Eve LLP's internal working documents to which the ASG Defendants are not entitled; and

(ii)       as to the remainder of the documents the searches carried out have identified "the correspondence and common documents falling within the class described in paragraph 1(a)" and insofar as discovery must be conducted in a proportionate and cost-effective manner, the ASG Defendants have discharged that burden.

20.     Whilst it may be the case that all or some of the correspondence, notes, drafts and other documents produced by BDO LLP or Gerald Eve LLP belong to those entities rather than to the ASG Defendants, there is no evidence before me as to the extent of the ASG Defendants' rights to call for those documents, or from either BDO LLP or Gerald Eve LLP as to what documents they will, or will not, provide to the ASG Defendants.  Nor does the Second Defendant depose in his affidavit that the documents sought under the First Category are not within the ASG Defendants' custody, power or possession.  In the absence of any such evidence, this point carries limited weight, and the Court has to proceed on the basis that the ASG Defendants have a right to documents held by BDO LLP and/ or Gerald Eve LLP, albeit that the precise extent of that right, or the documents which might be produced pursuant to the right, are unclear.

21.     BDO LLP and Gerald Eve LLP searched some, but not all, of the documents held by them in relation to their engagements.  The documents searched were limited by filter to emails only.  In so doing, they do not appear to have differentiated between (1) documents held by them but in the power of the ASG Defendants, or (2) internal documents for which the ASG Defendants had no right to call.  Responsive documents were reviewed for relevance only and relevant documents were disclosed.

22.     The question for the Court is as to whether the limited relevance review of emails is sufficient such that the ASG Defendants' discovery protocol should be varied accordingly, or whether the documents held by BDO LLP and/ or Gerald Eve LLP, and of which the ASG Defendants can require production, should be searched in accordance with the previously agreed, discovery protocol.

23.     In my judgment:

(i)        the approach adopted by the ASG Defendants has led to a confused position on discovery such that it is wholly unclear whether they have, or have not, searched all or any of the documents held by BDO LLP or Gerald Eve LLP and falling within paragraph 6 of Practice Direction RC 17/07 (although it is evident that emails have been searched for relevant material);

(ii)       there is no evidence that applying the discovery protocol will produce a disproportionate result or expense (unlike the position in Lucaya Trustees Limited and Anor v Vistra Trust Company (Jersey) Limited) or otherwise be ineffective;

(iii)      there is no empirical evidence to justify searching only emails nor for adopting any different approach in relation to these document sources than was adopted under the discovery protocol; 

(iv)     the fact that searches have been carried out does not prevent further searches being ordered, particularly given the specific warning in paragraph 5 of Practice Direction RC 17/08;

(v)      the ASG Defendants should request BDO LLP and Gerald Eve LLP to provide them with the documents to which they are entitled (and they may consider excluding emails which have apparently already been reviewed in their entirety for relevance).  The documents produced should be subject to the searches and filtering set out in the ASG Defendants' discovery protocol, with discovery being given of responsive, relevant documents; and

(vi)     that disclosure should be by way of affidavit and list in accordance with the relevant Practice Direction and should provide sufficient particulars for the Plaintiff and the Court to understand the process that has occurred and why the ASG Defendants submit that they have given discovery of the relevant material held by BDO LLP and/or Gerald Eve LLP and which falls within their custody, power or possession.

Second Category

24.     Similar, if not identical considerations arise in relation to the Second Category.

25.     According to the Second Defendant's second affidavit, Ocorian and Crestbridge were the only trust and company service providers approached by ASG.  Insofar as Ocorian is concerned, the Second Defendant deposes that:

"Ocorian was not ultimately engaged by or on behalf of the First Defendant. The documentation and communications with Ocorian consist solely of the initial enquiries made by King & Spalding LLP of Ocorian. A complete set of documents to, from and regarding Ocorian to the extent they were already in the First Defendant's possession or custody [has been disclosed]. King & Spalding LLP has separately provided to the First Defendant copies of its communications with Ocorian and a review is being undertaken to check if additional documents are liable to be disclosed. If additional documents are liable to be disclosed, they will be..."

26.     As to Crestbridge, the Second Defendant deposes that:

"23. The First Defendant has, however, requested that Crestbridge search its records to identify all documents passing between Crestbridge and the First Defendant and its relevant agents and advisers (namely King & Spalding LLP and Carey Olsen Jersey LLP) which pre-date the incorporation of the Fourth Defendant and which relate to the provision of services in respect of and/or to the incorporation of the Fourth Defendant.

24. I am also informed by JTC Law that searches have been made by Crestbridge of the email accounts of Antony Hind and Chris Cameron (who I understand were the individuals at Crestbridge responsible for onboarding the business from the First Defendant) to identify any communications relating to the incorporation of the Fourth Defendant and which pre-date its incorporation."

27.     Documents that were responsive to the searches were then subjected to keyword searches. These keywords were different to those set out in the ASG Defendant's document protocol and appear to have been chosen in an attempt to locate relevant documents, albeit that there is no empirical evidence provided to support such choices.

28.     In my judgment:

(i)        in the absence of any contractual relationship between ASG and Ocorian, there is no basis whereby documents held by Ocorian could be said to be within the possession, custody or power of the ASG Defendants;

(ii)       the ASG Defendants should request Crestbridge to provide them with the documents to which they are entitled, which will crystallise the relevant document universe;

(iii)      unlike the documents in the First Category, documents that were responsive to Crestbridge's searches, namely emails, were then subjected to keyword searches.  These keywords were different to those set out in the ASG Defendant's document protocol, albeit that there is no empirical evidence provided to support any change.  The application of such keywords means that not all of the emails that might be responsive to the keywords in the ASG Defendants' document protocol will have been reviewed and emails cannot therefore simply be excluded from the documents requested from Crestbridge;

(iv)     the documents produced by Crestbridge in response to that request should be subject to the searches and filtering set out in the ASG Defendants' discovery protocol and to the keywords set out in paragraph 25 of the Second Defendant's affidavit which the ASG Defendants now regard as being appropriate. Discovery should be given of responsive, relevant documents; and

(v)      that disclosure should be by way of affidavit and list in accordance with the relevant Practice Direction and should provide sufficient particulars for the Plaintiff and the Court to understand the process that has occurred and why the ASG Defendants submit that they have given discovery of the relevant material held by Crestbridge and which falls within their custody, power or possession.

Third Category

29.     This category is rather different to the first two.  The First to Third Defendants gave discovery, in accordance with their discovery protocol, and swore the relevant affidavits, both of which contained the requisite endorsement from Advocate Garrood.  Unlike the first two categories of documents, no further document sources have been identified or reviewed, nor have any further documents been disclosed. This is therefore an application for specific discovery.

30.     The Plaintiff makes two complaints:

(i)        firstly, it submits that only 10 internal emails between Mrs El Diry and the Second Defendant have been disclosed and no text messages or other communications between the various custodians have been disclosed. It regards this as an "inherently unlikely" position and submits that it is indicative of the fact that relevant documents exist and have not been disclosed; and

(ii)       secondly, whilst ASG has disclosed text messages between Abdullah Al Suwaiket / Ibtissam El Diry and Nasser Al Shawaf from 2016 through to 2020, which were available on their mobile phones in September/October 2023, they have not disclosed:

(a)      any text messages or other communications between the three ASG custodians; or

(b)      copies of messages with Robert Law of Rassmal.

31.     The Plaintiff submits that relevant documents clearly exist and that an order for specific discovery should be made.  Further, it suggests that the reason for the non-disclosure is because the custodians themselves harvested their mobile phone data (by taking images of the relevant messages) rather than allowing eDiscovery providers to extract the material.

32.     As to the first complaint, the Second Defendant has deposed that:

"30...neither I, Mrs Ibtissam El Diry or my father Mubarak Al Suwaiket, the Third Defendant, habitually communicate in writing with each other on matters of business such as in respect of the VX project, rather we tended to speak with each other in person or via telephone. I believe the discovery obligations in respect of the classes of documents identified in paragraph 1.c. of the Summons is complete."

33.     Further, the Third Defendant states in his affidavit of discovery that:

"I am 74 years of age. I do not conduct business communications by WhatsApp or text messaging."

34.     In my judgment, whilst the fact that only 10 internal emails have been disclosed might be unexpected insofar as the Plaintiff is concerned, the Defendants have provided explanations and Advocate Garrood has provided an endorsement that he is satisfied that they have complied with their discovery obligations.  In my judgment, the fact that a lower than expected number of documents might have been disclosed does not mean that there is a prima facie case that the ASG Defendants have, or have had, documents which have not been disclosed. Accordingly, I reject the first complaint.

35.     These explanations also go to the heart of the complaint about the absence of text messages or other communications between the three ASG custodians.  As with the first complaint, I am not satisfied on the basis of the evidence before me that there is any or any prima facie evidence that the ASG Defendants have documents relating to messages between themselves which have not been disclosed.

36.     As to the complaint that the ASG Defendants have not disclosed back to the Plaintiff messages from Robert Law, this could be evidence that the defendants have, or have had, documents which have not been disclosed.  However, in his affidavit of discovery, the Second Defendant explained why any disclosure of messages by the ASG Defendants might be limited:

"When the Custodians upgraded their mobile phones from time-to-time they did not maintain a back-up of the devices nor store data in a cloud. The images of the WhatsApp and text messages were contemporaneously preserved and are the totality of the WhatsApp and text messages in the First and Second Defendants' possession, custody or power relating to any matter in question in this action." (Emphasis Added)

37.     Schedule 2 to the List of Documents filed by the First and Second Defendants sets out those documents which the First and/or Second Defendants used to have in their possession, custody or power.  It only refers to originals of documents listed in Schedule 1 (the documents disclosed by the First and/or Second Defendants) and does not mention any messages.  There is an inconsistency between the contents of the affidavit and the List of Documents.

38.     However, having specifically reviewed the Plaintiff's summons for specific discovery, the Second Defendant has sworn a further affidavit confirming that "the discovery obligations in respect of the classes of documents identified in paragraph 1.c. of the Summons is complete".

39.     In my judgment, given the contents of the two affidavits sworn by the Second Defendant, one of which contains an endorsement from Advocate Garrood, I am not satisfied that there is prima facie evidence that the ASG Defendants have documents relating to messages, whether with Robert Law or otherwise, which have not been disclosed.  Accordingly, I decline to order further specific discovery.

40.     Given my decisions in relation to the First and Second Category documents, the ASG Defendants will have to file further affidavits in accordance with Practice Direction RC 17/07. In so doing, they should correct the deficiency in Schedule 2 of their lists of documents.

41.     In the absence of prima facie evidence that the ASG Defendants have messages that have not been disclosed, there is no basis for requiring the ASG Defendants' eDiscovery provider to collect data from their mobile phones.  However, insofar as the custodians themselves were responsible for collecting their own data and/or responsive documents, I do not think that such an approach is in accordance with best practice.  In my judgment, unless impracticable:

(i)        where an eDiscovery provider is retained by a party, that eDiscovery provider should be responsible for collecting and searching electronic documents, not least in order to ensure that documents are kept in their original format together with their metadata in accordance with Practice Direction RC 17/08; and

(ii)       if it is to be suggested that data custodians might collect and/or search their own records, the issue of document collection and searching should be raised with the other parties in accordance with the Practice Direction, as soon as contemplated, and to the extent that an approach cannot be agreed, it should be referred to the Court.

The Request for Further Information

42.     Paragraph 2 of the Plaintiff's summons seeks an order that the First, Second and Third Defendants provide further affidavits explaining:-

"what steps have been taken to search for, review and disclose documents produced or stored on mobile telephones and generic email accounts including:

a. Whether the email addresses vci@alsuwaiket.com, suwaiket@yahoo.com or halloya@icloud.com (the "Email Accounts") are within their control;

b. What mobile telephones Ibtissam El Diry, the Second Defendant and Third Defendant currently have in their possession or control (the "Current Phones");

c. When they acquired their Current Phones;

d. What mobile phones they have had in their possession or control since 2016 until they acquired their Current Phones (the "Previous Phones");

e. When they changed their Previous Phones;

f. What accounts (such as Blackberry, Samsung, Google, Microsoft or iCloud accounts) they use on the Current Phones or used on their Previous Phones (the "Accounts");

g. What steps they have taken to search for electronic documents on the Current Phones, the Accounts and the Email Accounts; and

h. Why they did not take steps to preserve documents on any Previous Phones when litigation was contemplated by 2020 at the latest."

43.     The Plaintiff's Skeleton Argument does not refer to paragraph 2 of the summons, and does not identify it as being in issue, but invites the Court to make an order in terms of a draft order which includes a paragraph reflecting the contents of paragraph 2.

44.     The ASG Defendants submit that they have answered the queries raised in paragraph 2 insofar as they can, in their original affidavits of discovery, in correspondence from Advocate Garrood dated 13 March 2024 and 18 April 2024, and in an affidavit from the Second Defendant in which he confirmed the contents of Advocate Garrood's letters.

45.     Affidavits of discovery are important, if not critical, documents.  However, they are not pleadings and are not to be judged against some artificial notion of perfection.  They are required in order for a party to explain, in their own words, how they have discharged their obligation of discovery.  In my judgment, an affidavit of discovery should inform both the receiving party and the Court, with a reasonable degree of particularity, about the exercise that has been undertaken, the scrutiny that has been applied, any issues identified, the quality control process, the confidence that can be attached to the output and provide sufficient information not only to address likely queries, but also to allow those queries to be articulated.  I remind parties on the observations of Master Thompson in Smith v SWM [2017] JRC 026 in which he endorsed Chief Master Marsh's comments in Astex Therapeutics Limited v AstraZeneca AB [2016] EWHC 2759 (Ch):

"15.  During the course of the hearing of Astex's application, the form in which the claim for privilege was made by AZ was described as "conventional". I accept that the claim for legal advice privilege is described adequately. However, although it may have been conventional at one time to state that other documents are "by their nature privileged", such a statement has no place in modern litigation, let alone litigation of very real complexity. It is clearly unhelpful, without describing the documents said to be privileged, to say that 'their nature' explains why they are privileged because the recipient of the list of documents has no way of knowing which documents, or classes of documents, are being referred to."

46.     In this case, the initial affidavits of discovery filed by the ASG Defendants were inadequate in that they contained insufficient information about the matters set out in paragraph 2 of the Summons. In my judgment, those deficiencies were corrected by Advocate Garrood's correspondence and its subsequent adoption by the Second Defendant in his affidavit sworn on 18 April 2024 and any further order is unnecessary. I therefore decline to make an order in terms of paragraph 2 of the summons.

Authorities

Security Interests (Jersey) Law 2012. 

Vilsmeier v AI Airports International Limited [2014] JRC 101. 

Victor Hanby Associates Limited [1990] JLR 337

Lucaya Trustees Limited and Anor v Vistra Trust Company (Jersey) Limited [2021] JRC 320. 

Practice Direction RC17/08

Smith v SWM [2017] JRC 026. 

Astex Therapeutics Limited v AstraZeneca AB [2016] EWHC 2759 (Ch).