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 follows on from my judgment dated 13 May 2024 reported at MacLeod v The Channel Islands Cooperative Society Limited [2024] JRC 109 ("the 13 May judgment") and sets out my reasons for certain limited discovery orders I made at a hearing on 24 October 2024.
2. In the 13 May judgment, I set out my reasons for requiring directors and former directors to disclose emails or WhatsApp messages held on their personal devices.
3. The hearing in respect of the 13 May judgment took place on 15 and 16 February 2024. As I made an immediate decision, an Act of Court was issued on 16 February 2024. The relevant part of the order in the Act was found at paragraph 2A as follows:
"a. within seven days of the date hereof, the Defendant shall write to all current and former directors (singularly "the Director" or collectively "the Directors"), in post between the between the dates of the Plaintiff's appointment as a director in 2018 and the termination of the Plaintiff's employment on 28 June 2020 ("the Relevant Period") informing them that:-
i. the Defendant has an enforceable right to receive all communications relating to the affairs of the Defendant;
ii. each Director shall provide copies of any work-related email, text, WhatsApp or any other electronic communication concerning the Plaintiff during the Relevant Period;
iii. in the case of Mr Shenton the request shall only relate to documents not already provided by Mr Shenton to either party and disclosed by that party; and
iv. the requirement in sub-paragraph 2.i.a.ii. extends to any personal device of any Director upon which such communication is held."
4. Each director written to was also given twenty-one days to respond either by providing copies of all documents in their possession or making personal devices available. I also built in certain safeguards to ensure that only relevant data was extracted. I further gave the Defendant fifty-six days to provide a further affidavit of discovery.
5. I also warned the Defendant that if any director refused to provide any communications or access to any personal devices but later provided a witness statement, that there was liberty to apply to exclude such evidence from being used at trial.
6. In response to these orders, two affidavits were filed. The first was from Mr Gerald Augustin, Chief Technology Officer of the Defendant. This affidavit addressed two issues in response to paragraph 2(v) of the Act of Court dated 16 February as set out at paragraph 5 of the affidavit:
"a. To provide an explanation as to whether, during the period 2018 and 30 June 2020, the Defendant had in place any written policy relating to the wiping and gifting of devices to retiring directors; and
b. To identify in respect of each director who retired between 2018 and 30 June 2020, whether that director received any phone, laptop or other device from the Defendant and if so when that device was wiped."
7. Secondly, Dr Kelly, Society Secretary of the Defendant, provided a supplemental affidavit of discovery as a result of the other orders of the Act of Court of 16 February 2024. The supplemental affidavit of discovery exhibited all the letters sent to each of the directors which were, for the most part, in identical form apart from a few minor differences which are not significant. The affidavit also exhibited a supplemental list of documents.
8. The affidavit explained that fifteen individuals were contacted with two offering their personal devices, namely Paula Williams and Mr Alexander Fearn. Nine individuals replied saying that they had no documents belonging to the Defendant on their personal devices. These individuals included Jennifer Carnegie and Carol Champion.
9. I have referred to these two individuals because subsequent to the Act of Court of 16 February 2024 and the judgment of 13 May 2024, the Plaintiff was given permission to amend his Order of Justice to allege that Jennifer Carnegie, Carol Champion and Paula Williams were acting in bad faith in criticising the Plaintiff or were plotting against the Plaintiff and had reached a secret agreement whose objective was to procure the removal of the Plaintiff from his position. The second affidavit of discovery exhibited all the letters sent to each of the directors which were, for the most part, in identical form apart from a few minor differences which are not significant. The affidavit also exhibited a supplemental list of documents.
10. Advocate O'Connell for the Plaintiff was not happy with the Defendant's response and accordingly on 29 July 2024 emailed Advocate Heywood. Advocate O'Connell firstly criticised the Defendant for providing an umbrella affidavit and suggested that his client was entitled to have the benefit of knowing that each individual had sworn an oath to confirm the truth of the assertions contained in Dr Kelly's affidavit.
11. Secondly, he referred to an email dated 30 July 2019 from Mr Lintell, the then Company Secretary of the Defendant. This email was referred to in the 13 May judgment at paragraph 35 and was one of the reasons why I made the orders I did as set out at paragraph 85.
12. It is also right to set out that the supplemental discovery disclosed contained a series of WhatsApp communications involving some of the directors, in particular Ms Williams, Ms Carnegie and Ms Champion. These had been disclosed by Ms Williams, although Ms Carnegie and Ms Champion had not retained copies of these messages.
13. This led Advocate O'Connell, in respect of Ms Carnegie, to pose a series of questions that he felt Ms Carnegie should answer by providing an affidavit that confirmed and explained her position comprehensively. A similar request was made in respect of Ms Champion.
14. The letter also raised the fact that Mr Lintell should have been required to produce any communications held on his personal devices because he had status equivalent to that of a director and was the author of the email of 30 July 2019. Advocate O'Connell also sought a detailed sworn affidavit in relation to the wiping of certain devices provided by the Society.
15. Mr Heywood provided a substantive response on 22 August 2024. The Defendant's position was that it had complied with the Act of Court of February 2024 and in particular observed that third parties were ordinarily under no obligation to swear an affidavit, and the Act of Court of 16 February did not impose any such obligation.
16. In relation to Ms Carnegie, Mr Heywood explained her approach as follows:
"Ms Carnegie has confirmed that (on the recommendation of the Jersey Information Commissioner) she has the settings on her private laptop set to delete emails after one year and that she does not keep copies of the Society's documents outside of the Society system. Ms Carnegie instructs us that she routinely purges messages from her phone (on the advice of the JOIC). The suggestion that Ms Carnegie's confirmations lack credibility is a further example of Mr Macleod carelessly throwing around allegations of bad faith with no evidential basis to support them."
17. Mr Heywood also emphasised that the relevant WhatsApp group messages between different members of the remuneration committee of the Defendant had been disclosed by Paula Williams.
18. In relation to Ms Champion, Mr Heywood stated "Much the same can be said in respect of Ms Champion as had been said in respect of Ms Carnegie".
19. In an email dated 3 September 2024 from Mr O'Connell, he emphasised paragraph 93 of the 13 May judgment, which provided that: "If the individuals receiving requests have not retained the same, then they should be requested to explain when documents were destroyed".
20. This part of the judgment was emphasised in his oral submissions.
21. It is right to record that Mr Heywood stated that the Act of Court did not contain this requirement and that by the time the parties had received the judgment, his clients had already complied with the terms of the Act of Court of 16 February 2024.
22. Mr Heywood also emphasised both in the correspondence prior to the application and in his oral submissions that the Defendant had undertaken a very time consuming, expensive and significant discovery exercise and in his view the Defendant had gone beyond what was required to meet its discovery obligations.
23. In the email of 3 September 2024, Advocate O'Connell again posed questions in relation to the responses of Ms Carnegie and Ms Champion.
24. The summons issued by Advocate O'Connell sought the following relief:
"1. That the Defendant shall provide specific discovery of the documents and materials set out in the schedule attached to this summons within 14 days of the hearing of this summons;
2. That the Defendant shall otherwise be ordered to remedy the defects in its discovery and compliance with the Act of Court dated 18th February 2024 by confirmatory affidavit as to when and in in what circumstances discoverable documents were destroyed/deleted or disposed of or alternatively address such deficient discovery in such manner as the Court shall deem just."
25. The schedule to the summons stated as follows:
"It is the Plaintiff's case that discovery proffered by the Defendant and ordered by Act of the Court dated 16th February 2024 is deficient in the following respect :-
1. Communication concerning issues relevant to this dispute passing between Board members and Executives of the Defendant from/to:-
a. Personal email accounts/addresses of Chris Lintell ; and/or
b. electronic communication or social media accounts of Chris Lintell
have not been discovered / disclosed.
2. Explanation has not been given as to what has become of discoverable documents and/or the date when communications or disclosable documents in possession or control of former directors of the Defendant and Chris Lintell were deleted or destroyed."
26. The summons was supported by an affidavit sworn by the Plaintiff. His affidavit repeated the criticisms that had been made in correspondence by Advocate O'Connell on his behalf.
27. In his oral submissions, in addition, Advocate O'Connell suggested that it was important for each individual to explain when and the circumstances in which they had deleted documents. There was also a question mark as to whether the WhatsApp messages from Paula Williams represented the entirety of the messages or whether messages from other individuals might be slightly different in form. He was particularly critical of a lack of explanation from each individual as to why they had deleted communications.
28. Advocate O'Connell contended that it was important for this information to be disclosed in advance and Advocate O'Connell's questions answered so that the Court could be satisfied that a fair discovery exercise had taken place.
29. Mr Heywood in response emphasised the extent of the exercise carried out.
30. In relation to Mr Lintell, Mr Heywood contended that he was not a director, that no allegations of bad faith were made against him and that the affidavit in support filed by the Plaintiff did not identify any documents or categories of documents of discovery that Mr Lintell might be said to be holding. He also recalled that he believed Mr Lintell had been asked about whether he held any information on any personal devices in 2022 as part of the initial discovery enquiries.
31. In relation to the other individuals, Mr Heywood disclosed that they had responded in writing to the Court orders. On being pressed by the Court, he was willing to disclose such responses as long as they could not be subject to claims of litigation privilege. If any document contained matters covered by litigation privilege there might be a need to redact part of any response received.
32. Mr Heywood otherwise emphasised that the questions that Advocate O'Connell wished to put to witnesses, in particular Ms Carnegie and Ms Champion, were matters that could be explored in cross-examination at trial. What Advocate O'Connell was trying to do was to cross-examination in advance of trial. That did not meet the relevant test for specific discovery. This was important because the Plaintiff's summons was drafted as an application for specific discovery. The well-known tests of documents having to exist, be relevant and did not be disproportionate to require the same therefore applied.
33. In relation to Mr Lintell, I was satisfied that it was appropriate to extend the orders made on 16 February to him. While the Act of Court issued only extended to directors, the original application leading to the Act of Court of 16 February was in relation to "past or current members of its executive function", in addition to directors. Mr Lintell fell clearly within that definition. While the point was not challenged when the Act of Court was issued, as it could have been, had I been asked at the time I would have extended the order to Mr Lintell.
34. This was firstly because in the Defendant's answer at paragraph 6(a), Mr Lintell was described as being within the group of modernisers who wished the management of the Defendant to be more professional, energetic and responsive, and sought a tighter control of the executive management team, which included the Plaintiff.
35. Secondly, Mr Lintell was the author of the email of 30 July 2019, to which I have already referred. He was therefore clearly involved in communications with directors in relation to the Plaintiff's employment and its termination.
36. In reaching this conclusion, I accept that the Plaintiff had been signed off since 28 May 2019 on stress (and never returned to the Defendant). However, communications after the Plaintiff was signed off due to stress may still contain relevant information pertinent to why the Plaintiff was signed off and what the Defendant's directors or executive management knew about the Plaintiff's mental health. Secondly, the Plaintiff has an argument that the Defendant, knowing that the Plaintiff was suffering from stress, failed to address his stress in deciding to terminate his employment, instead of exploring whether a safe system of work could be created to allow him to return. The strength of that argument is a matter for trial both in law and once the evidence has been heard. Thirdly, extending the task to Mr Lintell in the way that it had been carried out for other directors was not disproportionate or unreasonable.
37. I also required Mr Lintell to explain when he had destroyed documents. This was because as he had already been asked previously about whether he had kept any records on personal devices and because this was not going to be an onerous task for one individual.
38. In relation to the second part of the relief sought by the Plaintiff, as the Defendant had received written responses from the individuals contacted, unless these could be subject to a claim for litigation privilege, in my view they were disclosable. This was so that the Plaintiff had a fair understanding of anything the individuals had said in response to the letters they had received.
39. However, this was as far as I was prepared to go. The Plaintiff, by virtue of the correspondence to which I have referred, has the benefit of explanations from individuals about why they destroyed documents. He will also have the benefit of the answers received which can be the subject of appropriate cross examination at trial.
40. Otherwise, the Plaintiff was seeking to go too far. The application was firstly seeking to re-open the orders made on 16 February to make personal orders against the third parties to produce documents, explain when they had been destroyed and the reasons. However, my order of 16 February has not been appealed, even within one month of the reasons being produced. While asking Mr Lintell who has not yet provided discovery to explain when and in what circumstances he had destroyed documents was not onerous, to go back for all the other directors in my judgment at this stage was a step too far and was onerous.
41. Secondly there is no application to say that a fair trial cannot take place by virtue of certain documents not having been disclosed and devices wiped. The Plaintiff has not provided any analysis to show that documents or categories of documents (as distinct from duplicates) are missing. Nor has he produced any evidence de from an e-discovery provider to show that material on devices that have been wiped is retrievable.
42. Thirdly, the communications that have come to light as a result of the orders I made in February, namely WhatsApp messages (which did not involve Mr Lintell) have already been produced from Paula Williams. There was no evidence produced by the Plaintiff for this application that these had in any way been altered or tampered with or that they did not represent the full picture. Nor had there been any further application for discovery of any other WhatsApp messages. Asking other witnesses who had been party to those WhatsApp messages to produce the same when they already stated they had been disclosed is not an exercise that takes the case anywhere and, in my judgment, was simply trying to make life difficult for the Defendant. It is right to add however that what evidence might emerge from these messages is a matter for cross examination and submission at trial.
43. Fourthly, the questions Advocate O'Connell wished to put to Ms Carnegie and Ms Champion were, in my judgment, matters for cross-examination. If I had gone down the route of requiring affidavits to answer the questions, no doubt there would have been further questions based on the answers received. In addition, the questions that Advocate O'Connell wishes to put ultimately go to the credit of the witnesses. The trial is the best place for him to test their credibility so that the Jurats can evaluate the answers received and whether they accept the explanations already given by the Defendant in correspondence or to be disclosed.
44. Finally, the discovery exercise has to be brought to a conclusion. While discovery is an ongoing obligation, the work required for affidavits of discovery to be produced has now been completed, witness statements for trial have been produced and trial dates have been fixed. The focus of this case is therefore moving to trial where the issues in dispute are to be resolved.
45. For all these reasons, the applications brought by the Plaintiff were otherwise refused.
Authorities
MacLeod v The Channel Islands Cooperative Society Limited [2024] JRC 109.