Before : |
M. J. Thompson, Esq., Commissioner sitting alone |
Between |
Colin Sinclair MacLeod |
Plaintiff |
And |
The Channel Islands Cooperative Society Limited |
Defendant |
Advocate M. St. J. O'Connell for the Plaintiff.
Advocate J. N. Heywood for the Defendant.
judgment
the COMMISSIONER:
1. This judgment contains my decision in respect of a summons issued by the Plaintiff seeking permission to bring an application for specific discovery out of time, a second summons issued by the Plaintiff seeking specific discovery, and a summons issued by the Defendant requiring the Plaintiff to undertake a specific e-discovery exercise. The Plaintiff's second summons and the Defendant's summons also sought relief in relation to the exchange of witness statements of fact. The Plaintiff sought an extension of time whereas the Defendant sought an order debarring the Plaintiff from filing any witness statements of fact.
2. The summonses were heard by me sitting as a Commissioner due to conflicts of interest preventing the Master of the Royal Court and the Judicial Greffier from presiding in relation to these interlocutory applications.
3. The proceedings commenced by the Plaintiff is a claim for personal injuries seeking damages for psychiatric and physical illness of injury arising from the stress of working for the Defendant. The Plaintiff had worked for the Defendant since 1990 and became CEO in 2010. He was appointed to the Board in 2018. On 28 May 2019, he was signed off with work related stress and his contract of employment was terminated on 27 March 2020.
4. The Order of Justice contains a number of allegations about the Defendant. In summary, these included the following:
(i) That from 2017 to 2019 the Board became increasingly dysfunctional;
(ii) On one board sub-committee, the Remuneration Committee ("RemCo"), was operating in a way which undermined the Plaintiff's ability to direct the day-to-day affairs of the Defendant and also undermined the Board;
(iii) The Plaintiff was being set up to fail;
(iv) RemCo members were holding clandestine meetings and the Plaintiff was the subject of bullying and a smear campaign.
5. The Order of Justice also contains specific allegations about a Board meeting that took place on 5 May 2019 and that, having been signed off on sick leave on 28 May 2019, the Plaintiff's access to the Defendant's email systems were removed on 18 July 2019.
6. The Plaintiff also complained about the conduct of one of the directors, Paula Williams, in applying for the Plaintiff's job as CEO, which the Plaintiff alleges was in breach of her duties as a director. She subsequently became President and commissioned an investigation of a complaint by the Plaintiff about the behaviour of another Board member.
7. The Plaintiff indicated that by March 2020 he was ready to return to work. However, his employment was terminated with his notice to expire on 31 December 2020.
8. On 25 June 2020, the Defendant then purported to terminate the Plaintiff's employment with immediate effect with a payment in lieu of notice. It is right to observe that all employment issues in relation to termination of the Plaintiff's employment have been resolved. The only claim that therefore remains is the claim for personal injuries.
9. The allegations of the Plaintiff are contested by the Defendant. The Defendant's position in summary is that there were two informal groups on the Board which had emerged leading up to May 2019 arguing for different approaches to the future governance of the Defendant. The group described in the Defendant's Answer as "the Modernisers" are said to have been seeking to ensure the Plaintiff was properly discharging his duties and to make him accountable for the actions of the organisation he ran. The criticisms of the Plaintiff summarised above are therefore all denied. In particular, it is denied that that the Plaintiff exhibited any particular physical or mental health changes during 2018 or 2019.
10. In his submissions, Advocate Heywood emphasised that in relation to the type of claim that the Plaintiff was bringing, the question was whether the kind of harm to the Plaintiff was reasonably foreseeable and represented any injury to health attributable to stress at work, as distinct from any other factors. He also emphasised the foreseeability depended on what the employer knew about the individual employee (see Sutherland v Hatton and Others [2002] EWCA Civ 76 known as Barber v Somerset [2004] UKHL 13 when the matter came before the House of Lords).
11. In relation to the procedural history of this dispute, the former Judicial Greffier issued directions on 25 July 2023. Paragraphs 3, 4 and 5 of that Act contained the following directions:
"3. there shall be discovery by affidavit and list by close of business on 13th October 2023. Any initial request for inspection or copy documents is to be made within 7 days of service of the lists;
4. signed and dated witness statements of fact shall be served by:
a) Plaintiff: 5pm on 3rd November 2023; and
b) Defendant: 5pm on 24th November 2023;
5. each party has permission to rely on the evidence of one expert in the field of Psychiatry; permission being given to call the said experts on matters remaining in issue. The reports of the said experts are to be served by:
a) Plaintiff: 5pm on 12th January 2024; and
b) Defendant: 5pm on 23rd February 2024."
12. On 24 November 2023, a consent order came before me for approval because of the conflicts of interest referred to above. By an Act dated 24 November 2023, I therefore made orders varying the timetables in paragraphs 3, 4 and 5 of the Act of Court of 25 July 2023.
13. I also varied the time for experts to meet. In addition I added the requirement set out at paragraph 1(a)(i) of the act of court that any specific discovery application had to be issued by 12 January 2024 by way of a date fix appointment.
14. Discovery was provided by the parties pursuant to paragraph 1(a) of the Act of Court of 24 November 2023. The Defendant's discovery was provided on 8 December and the Plaintiff's on 11 December 2023.
15. On 19 December 2023, Advocate O'Connell wrote to Advocate Heywood, which email contained the following:
"We have performed a high level review of your client's discovery in this case and it is clear that it is chaotic, full of duplication and that there are significant areas of deficiency. I will be writing to you shortly with a structured explanation of where your discovery is inadequate but it is plain that the deficiencies are significant. In the absence of proper cooperation from you to remedy these defects it will be necessary to issue applications for specific discovery. As such, it is impossible for my client to complete the preparation of the witness statements that are due to be exchanged in this case on 5 January 2024. The purpose of this email, therefore, is to draw these matters to your attention and to seek your agreement that a reasonable extension of time can be agreed for exchange of witness statements. I do not have a suggested extension to offer you at this stage because much will depend on whether you are instructed to cooperate in remedying this defective discovery, in the absence of which a timetable will have to be set for specific discovery applications, as mentioned."
16. Advocate Heywood replied on 20 December 2023. His email stated as follows:
"I obviously do not accept your characterisation of my client's discovery. If and when you raise anything other than a vaguely expressed general dissatisfaction I will, of course, consider matters. I note now, however, that it ill-behoves you or your client to complain about the process in circumstances in which you were invited to engage with us in that process and you refused the invitation.
With respect, I am not really sure what you currently want me to agree to. It appears that you wish me to: (1) agree that my client's discovery is deficient (without identifying anything specifically); (2) agree that we will remedy the unspecified alleged deficiencies; and (3) agree that we will accede to any request you might make for an extension in respect of your client's obligation to file witness statements in circumstances in which you do not say what length of extension you might require. I obviously cannot do that. If you raise specific queries I will consider them and seek my client's instructions. If you make a proper request for an extension then I will consider it and seek my client's instructions. At present, you have not put forward anything upon which I can even seek instructions."
17. Advocate O'Connell replied on 4 January 2024 with a lengthy email setting out his criticisms of the Defendant's discovery. I address these criticisms later in this judgment. The email however also contained the following statement:
"As you can see from the above paragraphs, it is the Plaintiff's position that the Defendant's discovery in this case is substantially defective both in terms of the chaotic and disorganised way in which it has been presented (which in itself is a substantial deficiency); and also in terms of the widespread breaches of obligation to make discovery of relevant materials. It seems clear that the Defendant has not taken its discovery obligations seriously at all, and based upon your current stance, you appear to stand by the Defendant's position. It seems unlikely therefore that serious progress will be made in achieving proper compliance by the Defendant with its obligations through correspondence and accordingly applications for specific discovery, along with other potential remedies, will follow in early course. If, par impossible, the Defendant on your advice is willing to remedy these many and manifest deficiencies without the need for argument before the court, then an early and constructive response to this email may avoid the need to trouble the court with specific discovery and associated applications. But, as mentioned, there is nothing visible from the Defendant's conduct at the moment to encourage Mr Macleod that such a constructive approach will be forthcoming, and so the help of the court will be sought as a matter of urgency.
In the meantime, the task of filing the Plaintiff's witness statement has obviously been rendered impossible due to these fundamental failures inevitably leading, yet again, to avoidable delay."
18. On 5 January 2024, Advocate O'Connell emailed Advocate Heywood, including the following statement in relation to the exchange of witness statements:
"Provided the Defendant can remedy all the deficiencies in its discovery in full by 19th January then, subject to the volume of additional materials that is required to be disclosed and therefore inspected, and provided all of the Defendant's discovery materials are placed in a logical and easy to navigate sequence, with all duplication removed etc, we anticipate being in a position to file witness statements by 2nd February. This will mean that your client will have had a total of 6 months to complete its discovery obligations properly since the date of the original Act of Court."
19. Advocate Heywood responded on 11 January 2024. He firstly expressed concern at the manner in which criticisms had been addressed by Advocate O'Connell.
20. He then made criticisms of the Plaintiff's discovery as follows:
"...the Plaintiff has not conducted a proper discovery exercise. It does not appear that the Plaintiff has carried out any form of e-discovery exercise at all. Certainly, we were not invited to take part in any discussions surrounding the process to be adopted or the search terms to be applied. We have never been provided with any indication of the Plaintiff's intended approach to e-discovery. There is nothing in the Plaintiff's Affidavit of Discovery which describes the process actually adopted (if any), what search terms were applied (if any), what devices (if any) were interrogated, or what technology or review platform was used (if any)."
21. He then provided a detailed response to the Plaintiff's discovery, including the following:
"You did not engage, either as envisaged by the Practice Direction, or at all. Instead, whilst failing to act as envisaged by the Practice Direction, you have chosen to bombard the Defendant with criticisms of a process which you were invited to engage with but which you chose not to, We also sought to engage with you in relation to the manner in which the results of our e-discovery process were provided to you. Again, you did not engage with us."
22. On 12 January 2024, Advocate Heywood issued his summons requiring the Plaintiff to undertake a specific e-discovery exercise and seeking to debar the Plaintiff from now filing any witness statements of fact because no witness statements of fact were exchanged on 5 January 2024 as required by the Act of Court dated 24 November 2023.
23. Advocate O'Connell issued his summons requesting an extension of time for witness statements and his application for specific discovery on 15 January 2024. On the same day he also issued a second summons seeking permission to bring an application for specific discovery out of time.
24. The correspondence between counsel continued on 15 January 2024. It is not necessary to set out the detail of that correspondence apart from to note that in Advocate Heywood's email of 15 January sent at 12.44 he stated the following:
"1. Specific discovery, I note your comments and your intention to issue an application on behalf of Mr. Macleod. You are, of course, now out of time to do so and will have to seek leave to make such an application out of time. That will be resisted on the basis that you can have no proper reason for having failed to comply with the orders given.
25. It seems it was this comment that led to Advocate O'Connell's second summons seeking to make an application for specific discovery out of time.
26. Both parties' applications for specific discovery were supported by affidavits sworn by the Plaintiff and Mr David Kelly, an employee of BCR Law for the Defendant. The Court file also contained the affidavits of discovery filed by both parties. I have read all these affidavits.
27. In dealing with the various applications, I decided to deal with the Plaintiff's summons seeking an extension of time and of the Plaintiff's specific discovery application together. This was because I felt it necessary to understand the specific discovery being sought to determine whether or not I should grant an extension of time. I then dealt with the Defendant's application against the Plaintiff, requiring the Plaintiff to carry out an e-discovery exercise. Having informed the parties of my decision on these summonses, the question of a revised timetable for the witness evidence of fact was then resolved in fairly short order. I adopt the same approach for setting out my decision in relation to each of the summonses.
28. In relation to the application for an extension of time, Advocate O'Connell accepted that his application for discovery was made out of time and that the Plaintiff had not complied with the timetable set out in the Act of Court of 24 November 2023. He reminded me that 12 January was a Friday. He therefore issued his application on the first available working day after the deadline had expired. Accordingly, he contended the breach was not an egregious breach, but it was not right to say that the Plaintiff had a cavalier attitude to timetables.
29. After some questioning from the Court, Advocate O'Connell ultimately explained that he had simply not been able to meet the deadline due to his own absences from the island in the early part of the new year, but contended that the consequences of his circumstances should not be visited upon his client.
30. He also criticised the Defendant's approach in not agreeing to a very short extension and contrasted this refusal with his own approach to the orders made on 24 November 2023 when he had agreed to much more significant extensions.
31. In relation to the specific discovery summons, most of the criticisms of Advocate O'Connell focused on paragraphs 1 and 2 of the schedule to the specific discovery summons ("the Schedule") which concerned an allegation that the Defendant had failed to recover from board members or former board members of the Defendant emails or WhatsApp communications held on their own personal devices relating to the affairs of the Defendant and concerning the Plaintiff. He argued by reference to Sheyko v Consolidated Minerals Limited [2021] JRC 267 that Defendant had a right to access documents held on devices used by current or former directors that related to their work for the Defendant and that the Defendant had a duty acting through its directors to obtain them for discovery (see paragraph 127 of Sheyko).
32. The relevance of what other directors were doing went directly to the heart of the allegations made by the Plaintiff. Advocate O'Connell, in submission, suggested that certain directors were acting in bad faith or were conspiring with each other. The documents requested were relevant to testing the evidence of the Defendant and the witnesses about the conduct of those directors which the Plaintiff was criticising in his Order of Justice.
33. In addition, the Plaintiff was seeking to adduce evidence from other individuals who would support the Plaintiff's position. It was therefore important for those other individuals to see the correspondence where they were directly involved and to provide their own evidence on it. While Advocate O'Connell was not willing to indicate who such witnesses might be (as was his right), it was clear they were persons also involved in the communications and events that led to the termination of the Plaintiff's employment.
34. He also submitted that it was no answer from the Defendant to its failure to ask for these documents to suggest that the Plaintiff should wait and see what the witness statements contained.
35. Advocate O'Connell said that it was also clear that such communications existed. He referred me to an email from Mr Chris Lintell, Company Secretary of the Defendant, dated 30 July 2019. This email was addressed to the then directors of the Defendant, using their personal email addresses only and not any email addresses of the Defendant. The subject matter of the email was clearly the Plaintiff. The email concluded with the following:
"May I please remind everyone to keep the correspondence on this matter to a minimum, to be as discreet as possible, and to only use this address when communicating with me.
All our correspondence (other than with Appleby) are potentially discoverable. This address is used for confidentiality."
36. This email appeared to have followed on from advice being given from Appleby. Both this email and an extract of the advice to which I refer later were provided by Mr Shenton, former President of the Defendant to the Plaintiff and were included in the Plaintiff's affidavit of discovery. While Advocate Heywood complained that such material had been provided by Mr Shenton in breach of duty, the documents relied upon by the Plaintiff were in his possession and there had been no application to prevent use of the same.
37. Advocate O'Connell then took me through a series of communications where he had raised the issue of communications between other Board members on personal devices. The point was first raised in an email dated 16 March 2023 from Advocate O'Connell to Advocate Pearce of BCR Law, where Advocate O'Connell stated as follows:
"So far as the Plaintiff's discovery requirements are concerned I will also revert to you with greater detail in due course, but it is right to flag at this stage that I will be seeking disclosure of all communications passing between the key senior persons who were involved in this matter at the material times. This disclosure will include, necessarily, all communications made and received on all digital platforms and I have no doubt that you will have already alerted your client and its witnesses to the need to preserve and disclose all such communications on all electronic devices, whether used for business or personal purposes."
38. The point was repeated in an email dated 20 June 2023 from Advocate O'Connell to Mr Kelly at paragraph 4 on page 2 of that email.
39. Advocate O'Connell's email of 23 July 2023 again repeated the request as follows:
"Discovery. My instructions are that members of the Executive and Board Members routinely used their personal mobile phones and email accounts for communications connected with their work within the Defendant. Such personnel displayed their mobile numbers on their written communications such as emails. There were WhatsApp groups within sub-sets of those personnel and these personnel communicated via that medium (and possibly other similar media) about work matters connected with the business of the Defendant. It follows that the Defendant is required to make disclosure of all such communications and it has been on notice of this issue for a very long time. Accordingly it is assumed that your firm will have supplied suitable advice to all personnel concerned to ensure the preservation and capture of all relevant communications."
40. A further request was made on 12 September 2023 which included the following statement:
"Employers have an enforceable right to the content of communications of an employee or agent in the context of the employer's business, regardless of who owned the device upon which the message is held. It follows that work-related content on any employee's or agent's (including any director's) mobile phone is under your client Society's control for the purposes of discovery. Your client Society is under a clear obligation to gather all such communications as part of its general discovery obligations."
41. This same email then provided a list of personal mobiles, personal email accounts and mobile phone numbers as known to the Plaintiff.
42. On 6 October 2023, Mr Kelly replied and in relation to mobile phone data stated the following:
"Finally, regarding mobile phone data, we are instructed that electronic devices that were allocated to board members were "gifted' to the members when they left CICS and data routinely 'wiped' beforehand. Where mobile data has been backed-up and is available, it will be discovered, however, many of the dramatis personae, as you have previously referred to them, are no longer employed by our client. These individuals are not party to the litigation and their personal devices and mobile phones are not within our client's custody power, or control."
43. Advocate O'Connell's reply of 13 October expressed concern about the wiping of devices including the following statements:
"You say that the digital evidence that we have been requesting for some time now has been destroyed. Your client should be left in no doubt as to how serious such a confirmation is in the context of this case. I have already drawn to your attention that your client's own employee, Mr Chris Lintell, wrote to all Board members on 30 July 2019 placing them expressly on notice of the requirement to preserve all relevant communications. In addition, my predecessor on this matter, Advocate Milner, wrote to your firm in September 2020 placing your client on express notice of its obligations to preserve all relevant evidence.
...
I invite your client to swear a detailed affidavit without delay confirming with precision the circumstances of such evidence destruction, including the dates when such evidence was destroyed, the names of the person(s) who caused this destruction, the names of the persons whose data was destroyed or wiped, why it is that you are able to say with such confidence that this data has, in fact, been destroyed (i.e. what steps have been taken forensically to recover it) and why your client allowed this to take place having been expressly notified not to do so. This is not an issue which can be ducked. It must be dealt with immediately and there must be no repetition of the inexplicable and unacceptable delays in responding to this point. If your client refuses to provide such an affidavit I will seek an order from the court requiring that one be sworn. Please take this opportunity to supply such an affidavit voluntarily without the need to apply to the court for such an order. Your client should be aware that all my client's rights on this matter are strictly reserved pending receipt of a full explanation in an affidavit."
44. In relation to the Defendant's affidavit of discovery, in relation to devices provided by the Defendant, the affidavit contained the following:
"28. As I understand it, it was possible for the users of those devices to create and save documents locally (such as Word documents) on the C: Drive of each of those devices. This area of the Mobile Computer was not backed up as a matter of course. This also applied to any mobile or desktop computers belonging to the Defendant and used by its employees. Everyone was instead encouraged to save any documents that they created to the Home Drive which was and is routinely backed up. As stated at paragraph 10, certain Home Drives have been interrogated as part of this process."
45. In other words, the searches of the Defendant's own hard drive would not produce documents created locally on devices provided to directors by the Defendant.
46. Paragraph 32 also explained as follows:
"As regards mobile phones belonging to the Defendant, such mobile phones are only issued to employees. The Defendant does not have the technological capability to back up such devices."
47. The affidavit then went through each of the former and current directors and set out whether or not a device was provided. For each individual in respect of their mobile number and personal email addresses, the affidavit stated that these were not within the Defendant's "physical possession, power or control". There were small differences between each of the individuals but these do not matter for the purposes of this judgment.
48. In relation to paragraph 3 of the Schedule, what was requested were copies of communications and notes in relation to the engagement of Lewis Silkin who prepared a report. However, the final version of the report had been disclosed, as had the final version of notes of interviews and the instructions given. The Plaintiff's position was that they wanted to ensure that they had all material and instructions provided to Lewis Silkin.
49. In relation to paragraph 4, it was explained the Plaintiff's concern related to an email dated 14 December 2023 from Mr Lintell to Mr Refault and Paula Williams. Mr Refault was another former director. The concern was that this exchange of emails appeared to have led to modifications being made to the Lewis Silkin Report, the final version of which had been disclosed. The Plaintiff wanted to see the different versions of the report before and after this exchange. Advocate Heywood interjected to say that the correspondence simply related to the report only, exhibiting part of an email. The relevant communications were provided to Advocate O'Connell during the course of the hearing.
50. Paragraph 5 of the Schedule referred to applying the search term "the subject". This was because this appeared to have been used as a way of describing the Plaintiff without using his name. The Plaintiff sought an order requiring the Defendant to conduct a search using that term.
51. Paragraph 6 of the Schedule related to destroyed evidence. This submission overlapped with requests 1 and 2. Advocate O'Connell also sought an understanding of why devices were wiped and when that occurred in relation to each of the individuals who were or had been directors at the relevant time.
52. Paragraph 7 related to Paula Williams' ambition to apply for the Plaintiff's role as CEO. This was relevant to the allegations at paragraphs 10, 17 and 19 of the Order of Justice. It was said to be clear that the document existing in some form firstly by reference to the Plaintiff's affidavit and secondly by reference to the minutes of a Board meeting held on 23 August 2019 at pages 32 and 33.
53. In relation to the remaining requests at paragraphs 8 to 15, the only further submissions made were in relation to the risk assessment recommended to be undertaken by Appleby. This was referred to in the extract from the Appleby advice. While the extract was undated, it was clear from its content that had been given prior to 3 September 2019. It was also clear from the email of Mr Lintell referred to above that Appleby had been retained by the end of July 2019.
54. In relation to the remaining items in the Schedule, Advocate O'Connell accepted the affidavit was not complete but offered to provide a supplemental affidavit.
55. Advocate O'Connell finally asked for access to all the Defendant's board minutes and meetings of various committees of the board so his client could review the same. While this request was referred to in the affidavit of the Plaintiff, it was not referred to in the summons issued by the Plaintiff.
56. Advocate Heywood for the Defendant took strong objection to time being extended for a specific discovery application. He observed that the Plaintiff had had the discovery on 8 December and had clearly been aware of the concerns he wished to raise by reference to the correspondence between Advocate O'Connell and Advocate Heywood or his colleagues. There was therefore no excuse for not issuing a summons on 12 January. Advocate O'Connell knew by 4 January what the concerns were.
57. In relation to how the Court should exercise its discretion where orders had been breached (see Newman v De Lima [2018] JRC 155 at paragraphs 42 to 49), Advocate Heywood contended that a trial could still proceed without hearing a specific discovery application. The sanction of refusing an extension was also appropriate when the Defendant had done its best and had devoted significant resources to complying with its discovery obligations.
58. In relation to the substantive relief sought by the Plaintiff, Advocate Heywood did not dispute the applicable principle in Sheyko. However, he sought to distinguish that case on the basis that the request the Plaintiff required would infringe the rights of individuals to keep their data private and the requirement to respect an individual's privacy under Article 8 of the European Convention on Human Rights.
59. He also contended that, because information had been provided to him by Mr Shenton, the former President of the Defendant, the Plaintiff had received anything relevant in any event. The Plaintiff therefore had the benefit of a significant discovery exercise carried out by the Defendant as well as material provided to him by Mr Shenton. The parties were therefore able to proceed to trial.
60. To the extent that Advocate O'Connell was suggesting that documents should be provided on the basis of his submissions that individual directors were acting in bad faith or certain directors were conspiring with each other, that was not pleaded. Advocate Heywood also disputed that what had been produced did not take the parties anywhere near conduct amounting to bad faith or conspiracy.
61. The searches carried out by the Defendant were reasonable and in compliance with Practice Direction 17/08. In addition to devoting significant resources, the costs the Defendant had been required to incur had potentially been higher because the Plaintiff had refused to engage with the Defendant and to agree any e-discovery protocol.
62. He questioned the relevance of what was sought because it post-dated the Plaintiff being signed off in May 2019 and therefore, by reference to Hatton referred to above, what was requested was not relevant. What the Plaintiff was trying to do was to re-run matters relating to the termination of his employment, but those issues had been resolved in a compromise. The Court should also be cautious in allowing the Plaintiff an opportunity to air his general grievances or to try to cause embarrassment to the Defendant.
63. While he accepted that the Defendant had a right to documents that it controlled by reference to Sheyko, if that position was taken to its logical conclusion, it gave rise to a risk of satellite litigation. Advocate Heywood questioned whether or not that was reasonable.
64. He accepted that if individuals who had documents but would not release them, but then gave witness statements on behalf of the Defendant, that an application could be made to exclude the evidence of such a witness.
65. Insofar as personal email accounts were used and any replies were stored on the Defendant's server, then copies of such emails would have been captured.
66. In relation to the deletion of evidence, there was nothing to this allegation. Advocate Heywood explained that there was a policy when directors retired that they were allowed to retain any devices provided by the Defendant that they had been using, but those devices were wiped before being released to the retiring director. This was not a written policy or procedure. It was the practice adopted during the tenure of the Plaintiff as CEO. The policy had since been changed.
67. In relation to the date from which documents should have been preserved, the first intimation of the present claim only occurred in September 2020. It was not therefore necessary for the Plaintiff to take steps to preserve documents prior to that date.
68. In relation to the email of 30 July from Mr Lintell and the advice referred to, by this time the Plaintiff had been signed off. The Defendant had therefore taken the sensible step of taking legal advice. Advocate Heywood however did not accept this meant the litigation was in reasonable contemplation.
69. In relation to what devices had been wiped between July 2019 and September 2020, Advocate Heywood could not provide this information. However, he maintained that if devices had been wiped, anything on them stored on the Defendant's server would have been kept and therefore it was only material stored locally that would have been deleted.
70. In relation to the other applications, he contended that the affidavit did not meet the relevant test on specific discovery and felt like a fishing expedition.
71. In relation to the request to apply an additional search term, he criticised the Plaintiff for failing to engage on what searched the Defendant should carry out, even though the Plaintiff was invited to do so in January 2023 and yet did not respond until a year later. This was far too late. Such behaviour should not be indulged.
72. The Court was also invited to remember that the Plaintiff had the benefit of the cost protection contained in Part 12A of the Royal Court Rules which limited the scope of costs orders being enforced in personal injury cases.
73. In relation to the request concerning a PowerPoint or report prepared by Paula Williams, the Defendant did not have a copy of this document in its possession, custody or power.
74. In relation to the request for a risk assessment referred to in the Appleby note, no such assessment was ever produced and therefore it did not exist. The extent of the search terms would have produced anything relevant that was not privileged.
75. In relation to extending time for the Plaintiff to bring an application for specific discovery, the relevant approach was set out in Newman v De Lima and the paragraphs to which I have made reference. This approach was approved in Sheyko at paragraphs 104 to 107, leading to the conclusion at paragraph 108 where the Royal Court endorsed the approach in Newman v De Lima.
76. In this case it is clear that the Plaintiff breached the specific time limit set by the Court for the Plaintiff to make an application for specific discovery contained in the Act of Court of 24 November 2023.
77. It is also clear that this breach is serious. Parties cannot disregard timetables set by the Court just because they choose to do so. There have been numerous decisions requiring parties who are not going to comply with an order to seek an extension of time if they cannot do so. The obligation to comply with directions is also referred to Practice Direction RC17/05 at paragraphs 18 to 27.
78. Ultimately Advocate O'Connell accepted that the fault for not issuing the application as directed was his. It might have been helpful if that had been set out in correspondence earlier rather than it requiring questioning from the Court to extract this explanation.
79. Nevertheless, I agree with Advocate O'Connell that the breach was rectified on the first available opportunity by both issuing the substantive application for specific discovery and by issuing a summons seeking relief from sanction.
80. Secondly, Advocate O'Connell had not sat on his hands between discovery being provided and him issuing his summonses for the Plaintiff. He had set out in detail what his concerns were.
81. Thirdly, for reasons explained later in this judgment, the issues in relation to directors and former directors being required to disclose emails or WhatsApp messages held on their personal devices is a serious issue in this case. It would be an inappropriate exercise of discretion to prevent the Plaintiff from bringing such an application at all.
82. In relation to what sanctions should apply, this will be dealt with when these reasons are provided to the parties. I observe however that while the Plaintiff has been successful in relation to its summons seeking relief from sanction, the Plaintiff through Advocate O'Connell brought the application on his own head by not complying with the timetable. This may need to be reflected in whatever costs order I ultimately determine should be made, having heard from the parties.
83. Turning now to the substantive summons, the test on specific discovery applications is well known and emanates from Hanby v Oliver [1990] JLR 337. I explored the detail of this in Newman v De Lima at paragraphs 31 and 32.
84. Paragraph 32 provides as follows:
"32. In terms of the approach to an application for specific discovery, therefore, the following principles should be applied:
a. The existence of an affidavit of discovery in proper form ought to be conclusive as to whether or not a party has complied with its discovery obligations.
b. That presumption can only be displaced by the production of evidence, by sworn affidavit, which establishes a prima facie case that the party has documents which have not been disclosed but that those documents will be relevant to a matter in Issue.
c. Even where an applicant is able to establish the existence and relevance of documents not discovered the Court must be satisfied that making an order for specific discovery is necessary for the just disposal of the action."
85. In relation to the request for email messages and WhatsApp messages referred to in paragraphs 1 and 2 of the Schedule, I am satisfied that such documents exist because some of them have been disclosed by the Plaintiff and because, in relation to email communications, of the contents of the email of 30 July from Mr Lintell to directors apart from the Plaintiff referred to at paragraph 35 above.
86. It is also clear that, while the Defendant's affidavit of discovery explains the significant tasks that the Defendant has carried out in relation to documents on its own servers, that task did not extend to emails and other communications made by the directors in relation to the Plaintiff and his departure from the Defendant on their own devices. As it was put by Commissioner Clyde-Smith in Sheyko at paragraph 127:
"127. Ultimately, it is irrelevant whether or not the devices were personal. CML had a right to access documents held on devices used by current or former employees or directors that relate to their work for CML and it has a duty, acting through its directors, to obtain them for discovery. "
87. It is clear from the Defendant's affidavit of discovery that they did not ask directors and former directors for copies of documents, whether emails, text messages or WhatsApp messages, which fell within paragraph 127 to be provided by those directors to the company. It is readily apparent that such documents exist.
88. In addition, the Defendant's list does not capture all documents held by directors or former directors because no requests have been made for them of such documents and copies of not all such communications are held on the Defendant's own I.T. systems.
89. While I understood Advocate Heywood's concern that to enter into satellite litigation to require directors or former directors to hand over all devices for review was not proportionate, such a concern did not prevent the Defendant for asking each director or former director to either make copies of such communications available or to make their devices available for review by an independent e-discovery provider. I made an order accordingly requiring the Defendant to take this step and an order requiring any relevant documents received from directors or former directors to be disclosed.
90. The use of an e-discovery provider to extract data also addressed the concerns about data protection and Article 8 of the European Convention on Human Rights which Advocate Heywood raised. I therefore made a specific order that the e-discovery provider should only provide to the Defendant any documents extracted which it determined were relevant, applying the sort of search terms and any artificial intelligence review that had already been applied to data held on the Defendant's own servers. I further directed that the Defendant, if it received any other data, should immediately destroy the same and notify the individual director concerned of the steps that had been taken.
91. I made this order because how directors, apart from the Plaintiff, were communicating was raised on the pleadings as an issue between the parties. Whether this amounts to a system of work related stress, as the Plaintiff alleges, or has its origins in disagreements between directors as the Defendant alleges, is a matter for trial. The documents requested are clearly relevant to this argument.
92. This is subject to one point. Advocate O'Connell, on more than one occasion, made allegations that certain directors were acting in bad faith or were conspiring with each other to damage the Plaintiff. Those allegations are not made on the face of the pleadings. I indicated that if the Plaintiff wished to make such allegations then the Plaintiff would have to apply to amend his Order of Justice. It was not fair to make allegations against individuals of behaviour that in effect was dishonest without putting them on express notice of such allegation and allowing them time to respond to that in any witness statement that such a person might choose to give.
93. If the individuals receiving requests have not retained the same, then they should be requested to explain when documents were destroyed. This is because by the end of July 2019 litigation was contemplated as can be seen by reference to the extract from the email of Mr Lintell sent at the end of July 2019 referred to at paragraph 35 above and that some form of advice was taken from Appleby. The fact that the claim is for work related stress rather than a claim for damages for termination of the Plaintiff's employment does not matter in this case. The extract from advice from Appleby dated July 2019 states
"As we have previously advised, an employer owes a duty of care to its employees which can, in cases of stress related absence, give rise to a personal injury claim if there has been a failure in that duty of care."
This clearly reveals that the Defendant was aware that the Plaintiff could bring a claim of the kind he subsequently issued and therefore the requirement to preserve documents required by Practice directions 17/07 and 17/08 was clearly engaged. It did not require the letter before action sent in September 2020 for the obligation to preserve relevant documents to be engaged. What this might mean is a matter for another day depending on what has been preserved and what can no longer be traced.
94. In relation to the instructions of Lewis Silkin, the Defendant was, as part of its affidavit of discovery, directed to set out why an amendment of the report was sought by Mr Refault. The relief sought by paragraph 3 of the Schedule was otherwise refused because, on its face, the Lewis Silkin Report both referred to the instructions received and the final version of notes of interviews agreed between Lewis Silkin and witnesses which had already been disclosed. This conclusion also meant that no order was made in respect of request 4. I note that there was one small point of clarification in relation to request 4 which was being addressed between counsel but this did not require any order to be made. .
95. In relation to paragraph 5 of the Schedule, the request to apply the search term to the Defendant's discovery was refused. The Plaintiff could have asked over a year ago for such a search term to be applied. It would be disproportionate and unreasonable to require the Defendant to carry out the extensive exercise described in its affidavit of discovery where the Plaintiff had elected not to engage in looking to agree an e-discovery process with the Defendant. This order was subject to one qualification in that the search term "the subject" was to be applied to any further documents received from directors or former directors pursuant to the orders made in relation to paragraphs 1 and 2 of the Schedule.
96. In relation to the wiped devices and paragraph 6 of the Schedule, I directed that the Defendant's affidavit of discovery should confirm the submissions made by Mr Heywood and, in particular, that the Defendant between 2018 and 30 June 2020 did not have in place any written policy relating to the wiping of devices gifted to retiring directors. Secondly, the affidavit was required to identify for each former director who retired after the Plaintiff became a director in 2018, whether that director had received any phone or laptop or other device from the Defendant and, if so, when any such device was wiped. I made this order because while the Defendant provided some detail in its affidavit, the position was not clear for each director. I also did not regard this as a significant task.
97. In relation to paragraph 7, I was satisfied by reference to the material Advocate O'Connell referred to in addition to the Plaintiff and the minutes of the Board meeting of August 2019, that some form of document prepared by Paula Williams existed and that it was relevant. The Defendant was therefore required to ask Paula Williams for a copy of any PowerPoint or report either provided to Mr Shenton in May 2019 or to any other director between May 2019 and August 2019, or referred to in the meeting of August 2019.
98. Both in relation to this request and in relation to requests to any director or former director who was asked to provide documents but who refused to do so, that the supplemental affidavit of discovery I ordered the defendant to make should set out whether any recipient of the request refused to make any communications available. I further directed that, if any such director or former director refused to provide copies of any such communications but later provided a witness statement, there was liberty to any party to apply to exclude such evidence from being used at trial. It would not appear to be fair for a former director on the one hand to purport to give evidence on behalf of one party, and yet to refuse to hand over documents.
99. In the case of Mr Shenton, I ruled that the obligation to hand over documents was limited to documents not already provided by him to the Plaintiff.
100. In relation to the requests for a risk assessment in paragraph 9 of the Schedule, the Appleby note simply recommended that a risk assessment be carried out. It is not evidence that such a risk assessment was carried out. If it was carried out, then the search terms used by the Defendant would have led to such a risk assessment being disclosed. The Plaintiff, on this issue, did not therefore satisfy me that it was appropriate to go behind the Defendant's affidavit of discovery.
101. In relation to the remaining issues in the Schedule, i.e. items 8 and 10 to 15, no affidavit has been produced in support of these requests. The Plaintiff has not therefore rebutted the presumption that the Defendant's affidavit of discovery is conclusive in relation to these requests.
102. I should add that on their face it was not clear to me why these requests were relevant even if I assume in the Plaintiff's favour that such documents exist. I was also concerned that the requests were very broad in nature and therefore would amount to a disproportionate or unreasonable step if the Defendant were required to search for the same.
103. Finally I should also refer to the request, although not referred to in the summons from the Plaintiff, to review all Board minutes. Advocate Heywood explained that all relevant Board minutes had been disclosed. Again, therefore, the Plaintiff has not satisfied me that it is appropriate to go behind the Defendant's affidavit of discovery on this issue. I was not satisfied that every Board minute would contain something relevant to the claim the Plaintiff is now advancing.
104. The next issue I considered concerns the Defendant's request that the Plaintiff be required to undertake a specific e-discovery exercise in accordance with the provisions of Practice Direction RC17/08. This issue can be dealt with briefly.
105. Firstly, it is clear that although the Plaintiff was requested to set out its position on e-discovery, by Mr Kelly in an email dated 6 October 2023, this request was given short shrift. In Advocate O'Connell's email of 13 October 2023, he replied as follows as paragraph 2:
"2. The Plaintiff's discovery obligations. You make some observations about my client's discovery obligations. While it was good of you to do so, you may assume that Mr Macleod has received advice on this issue. As things stand, he has completed all of the necessary tasks to enable him to comply with his discovery obligations and is ready to do so within the timetable set by the Greffier."
106. This response was clearly in breach of Practice Direction 17/08. Paragraphs 10 and 11 provide as follows:
"10. Each party and any legal representative for that party must, before the first directions hearing:-
a. provide to all other parties information about their intended approach to discovery of Electronic Documents; and
b. as far as is reasonably practical enter into discussions to seek to agree on how electronic discovery is to be provided.
11. Where a case involves or is likely to involve significant quantities of Electronic Documents or where the majority of the discovery is likely to involve Electronic documents, the parties shall provide information to each other prior to the first summons for directions in relation to the possible scope and extent of discovery in the proceedings by reference to the matters listed in the schedule to this Practice Direction."
107. It is clear from the Plaintiff's affidavit of discovery, in addition to the above email, that this did not occur. The search was carried out by the Plaintiff himself (see paragraph 7 of his affidavit of discovery) and no e-discovery provider was retained.
108. Yet just as the Plaintiff indicates that the directors and former directors were communicating by various electronic means, it is also clear from the material before me that the Plaintiff was also using a range of electronic devices. This is therefore a case where Practice Direction 17/08 was engaged, and the Plaintiff has not complied with the requirements of that Practice Direction. His affidavit of discovery cannot therefore be regarded as conclusive.
109. I therefore directed that the Plaintiff within twenty-one days provide the information required by Practice Direction 17/08. This requirement extended to the Plaintiff setting out whether an e-discovery provider could be retained and if not explaining why not, including setting out the cost of any such e-discovery provider and why the Plaintiff cannot afford to meet the same. While I accept the Plaintiff has previously asserted that his means are limited, the affidavits filed him do order not contain any detail or sufficient detail to substantiate this submission.
110. I further directed that this task should be carried out by the Plaintiff at his own cost. This is because the Plaintiff has clearly breached the practices expected of this Court without any justification. I regarded this order as an appropriate sanction for the Plaintiff not following the practices required by the Court. I have made it clear that this extended to the costs of providing the information required by Practice Direction 17/08. Thereafter, any costs incurred, including those of an e-discovery provider, could be claimable as part of the costs of the action.
111. Once the Plaintiff provides the information required, the parties were then to use all reasonable endeavours to agree the e-discovery approach the Plaintiff should apply with any disputes being referred to me for determination.
112. Having determined the discovery issues, I announced my decision to the parties. I also indicated to the parties that the Plaintiff should file his witness statement within twenty-eight days. This did not need to await any further discovery provided by the Defendant because the Plaintiff's evidence was about why he felt, based on what happened to him, that he was operating under an unsafe system of work. It was also for the Plaintiff to explain the effects of what he said occurred on his health. What others may have been saying behind his back without his knowledge was not relevant to this evidence.
113. This conclusion did not however apply to other witnesses of fact whom the Plaintiff might call whose witness evidence might depend on material relating to what was happening between other directors. Accordingly, I indicated that the evidence of other witnesses of the Plaintiff should be provided within fourteen days of discovery being completed by the Defendant pursuant to the other orders I had made and this judgment.
114. I also indicated that the Defendant would then have twenty-one days within receipt of the Plaintiff's evidence from other witnesses to file its oral evidence in reply.
115. Counsel did not demur from this proposed indication and accordingly I made these orders.
116. Once witness statements of fact are provided, the parties will need to deal with the deadlines for serving expert evidence and what other directions are required in order for trial dates to be fixed.
Authorities
Sutherland v Hatton and Others [2002] EWCA Civ 76.
Barber v Somerset [2004] UKHL 13.
Sheyko v Consolidated Minerals Limited [2021] JRC 267.
Newman v De Lima [2018] JRC 155.
Practice Direction RC17/05.