PI Brief Update

Do not Destroy! Ayannuga & Ors v One Shot Products Ltd [2021] EWHC 2930 (QB) - Rochelle Powell, Temple Garden Chambers

29/11/21. This was an application made on behalf of the claimants for orders in relation principally to disclosure against the defendant. The claim was brought against the manufacturer of a drain cleaner on the basis that the drain cleaning product was the cause of death and injury to the claimants. On 23 November 2015 the claimants’ solicitors, Leigh Day, wrote to the defendant putting them on notice of these claims. The manager of the defendant company, Mr Sutton, indicated that this letter had been passed on to their insurers. The defendant insurers wrote to Leigh Day on 21 December 2015, acknowledging the claim.

Between December 2017 and August 2018, proceedings were issued, Particulars of claim served and the claim defended. In March 2021 an order was made, which included a direction that the defendant file and serve its electronic documents by questionnaire. On 17 May 2021, the defendant’s solicitors, Kennedys, wrote to Leigh Day indicating that the defendant had no hard documentation dating back more than six years. In response Leigh Day wrote to Kennedys, setting out a number of concerns. In particular, he asked:

“Please can you explain what hard copy documents post 2009 were destroyed and why? When were these hard copy documents post 2009 scanned on to the defendants' hard drive and for what purpose?”

Kennedys responded on 7 June 2021, dropping what Mr Justice Martin Spencer described as “a bombshell”, namely that:

“All hard copy documentation in the factory was shredded in 2016.”

The issue to be determined by the court was the appropriate order to make when it became apparent that documents were destroyed shortly after the defendants were put on notice of the claim. Spencer J. was not persuaded by the defendant’s attempt to explain the error, commenting at paragraph [12]:

“The question arises what the defendant was doing shredding documentation in 2016 when they had been put on notice of a claim in 2015. That question remains to be answered, but I note that although it has been asserted that Mr Mounce and Mr Sutton, who jointly are the moving forces behind the defendant company, are not sophisticated when it comes to information technology and computers, they were experienced when it comes to facing claims of various sorts… and therefore can be expected to have been advised many times previously of the important obligation of retaining documentation relevant to litigation.”

Accordingly, an order was made requiring the defendant to (amongst other things):

1. Serve witness statements from both Mr Mounce and Mr Sutton explaining a number of matters, including which of the documents listed on the defendants' disclosure list were provided by the company or its insurance broker, Towergate, or any other source. In addition, Mr Mounce and/or Mr Sutton were required to explain how the hard copy documents were scanned on to the system and by whom.

2. The defendant to allow the claimants' appointed forensic IT expert access to the computer and hard drive to carry out his own searches.

3. The defendant to identify the previous insurers before Towergate, and ask those insurers whether they have any relevant documents involving previous claims in relation to the drain cleaning product.

4. The defendant to access documents held in a digital archive and to conduct searches of those documents for relevant material within three weeks.

Comment

Clearly, the failure to comply with the duty of disclosure may result in the requirement to fulfil far more onerous obligations. This is a useful reminder to practitioners, insurers and their clients, to ensure any and all relevant material is retained.

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