By: Tristan Jenkinson
I haven’t posted much recently, for which I apologise. I’m hoping get back to posting regularly now.
For those who haven’t seen, Doug Austin has started a new blog – eDiscovery Today. Doug (in something of a contrast to the eDiscovery Channel) posts daily on matters relating to eDiscovery, cybersecurity etc. His post today is particularly interesting, covering recent case law in which the disclosure of the defence was questioned.
You can find Doug’s new blog at https://ediscoverytoday.com/
UK eDiscovery Case Law – Strike Out of Defence for Lack of Disclosure
While we are on the subject of case law and defence disclosure issues, there is a case worth mentioning from the UK courts which has generated some comment recently.
The case involves a claim against Samba, one of the largest banks in Saudi Arabia. The claim centres on $300m that Samba received from a (now former) Director of Saad Investments. The claimants’ position is that the Director was holding the shares on trust for the company and that Samba were aware of this.
Both parties were ordered to give standard disclosure (in November 2018 – prior to the new disclosure rules pilot). Due to the fact that Samba may need to seek the permissions of the Saudi banking regulator (SAMA) for the disclosure to be made, the disclosure was to be staggered. Any documents not requiring SAMA’s permission to produce was to be provided in May 2019, and those requiring SAMA’s signoff were to be provided by September 2019.
The claimants provided their disclosure in full. Samba provided a first disclosure (noted to be small in the context of the case) and the second disclosure (where the substantial majority of disclosure was therefore expected) was never provided – despite an extension to December 2019 (which was requested on the date that the second disclosure was due).
Instead of providing their second set of disclosure, Samba requested a further extension and/or a variation of the standard disclosure order. This was, they claimed, on the basis that SAMA had refused them permission to disclose.
In response, the claimants issued an application to have Samba debarred from defending the claim and for the defence to be struck out, on the basis that they had failed to provide disclosure.
While it was recognised that SAMA had apparently denied Samba permission for the disclosure and allegedly stated that Samba may face legal action if it defied them, the court also found that the breaches by Samba (of the disclosure order) were deliberate and noted that the Bank had “wrongly failed to do what it should have done to persuade SAMA to relent so that it could comply”.
The result was that the court allowed the defence to just five specific issues, which could be fairly tried, despite the absence of disclosure. The remainder of the defence was struck out and Samba were debarred from defending all other issues.
This is an important case, demonstrating that the courts will use all the tools at their disposal when parties fail to comply with disclosure orders. This could become a baseline for failures to comply with the new disclosure pilot now that it is in place.
You can read the original judgement here;
Comment of the week?
One last point I wanted to cover is a comment in a judgement that I saw this week and links into apparent failures by the defence – in this case failure with the filed defence.
The case is a claim of blackmail and harrassment, where claimants raised issues with the defence filed by the Defendant. The claimant requested that the defence be struck out or alternatively, requested summary judgement. This was on the basis that neither in the defence filed, nor in any witness statement was there a defence against the issues raised.
Mr Justice Nicol discussed the issue of demonstrating if the defence has a real prospect of success, in particular stating “In deciding whether there is no compelling reason for a trial, it is not sufficient for the defendant to rely, like Mr Micawber, on the hope that something will turn up”.
Thanks for reading and stay safe everyone.