| Before : | Advocate David Michael Cadin, Master of the Royal Court. |
| Between | Rassmal Investments LLC (a limited liability company incorporated in the UAE) | Plaintiff |
| And | Mubarak Abdullah Al Suwaiket & Sons (a limited partnership formed in the Kingdom of Saudi Arabia) | First Defendant |
| Abdullah Al Suwaiket | Second Defendant | |
| Mubarak Al Suwaiket | Third Defendant | |
| MAMS Holdings Limited | Fourth Defendant | |
| VCI Limited | Fifth Defendant | |
| VCI Property Holdings Limited | Sixth Defendant | |
| VCI Intermediate Limited | Seventh Defendant |
Advocate J Barham for the Plaintiff.
Advocate J. D. Garrood for the Second toFourth Defendants.
The Fifth to Seventh Defendants did notappear.
judgment
the MASTER:
1.This is myjudgment in relation to an application by the Plaintiff against the First toFourth Defendants (known as the “ASG Defendants”) for specificdiscovery.
Background
2.By anOrder of Justice dated 21 December 2022, the Plaintiff, Rassmal Investments Limited(“Rassmal”), instituted proceedings against:
(i)the FirstDefendant, a closed joint stock company formed in the Kingdom of Saudi Arabiaand known in the proceedings as “ASG;”
(ii) Abdullah and Mubarak Al Suwaiket (the Secondand Third Defendants) who were directors of ASG;
(iii) the Fourth Defendant (known in the proceedingsas “MAMS”) which is owned by the First Defendant; and
(iv) the Fifth to Seventh Defendants, known as the“VCI Companies”.
3.Althoughthe factual details underpinning the claim are complex, for the purposes of theapplication before me, it suffices to note that Rassmal’s allegationsarise out of a joint venture type arrangement between it and ASG entered intoin about June 2017 for a property development project in London called VauxhallCross Island. ASG invested into theproject and in return, received shares in the VCI Companies which were in theprocess of purchasing the property. Further monies were loaned into thestructure in 2018 and as part of the arrangements, ASG took security overRassmal’s shares in the VCI Companies. It is alleged that subsequently MAMS wasincorporated on 12 March 2020 and in May 2020, ASG enforced its securityagainst Rassmal and purportedly sold the Plaintiff’s shares in the VCICompanies to MAMS, at a significant undervalue. In so doing, Rassmal alleges that the ASGDefendants acted unlawfully and amongst other things, ASG breached itsobligations under Article 46 of the Security Interests (Jersey) Law 2012.
4.The claimsare denied by the Defendants.
5.In July2023, the Court directed the parties to agree the scope and nature of searchesfor discovery:
(i)by aletter dated 28 September 2023, Advocate Garrood for the ASG Defendants set outthe approach that they proposed to adopt on discovery. He made no reference to valuers or othercorporate service providers but stated that in addition to relevant hard copydocuments, specific search terms would be applied to electronic documents,albeit that the document universe would be limited to a date range and fivecustodians, namely Ms El Diry the Managing Director of ASG, the Second andThird Defendants, and two directors at Crestbridge, which provided corporateservices to MAMS;
(ii) in their response dated 2 October 2023,Rassmal’s Advocates requested that the directors at Crestbridge searchfor documents before MAMS was incorporated as it was likely to have beenapproached in relation to the formation of MAMS;
(iii) separately, by a letter dated 28 September2023, Rassmal’s advocates made a request for further information underRCR 6/15 seeking copies of the valuations reports made by BDO LLP and GeraldEve LLP in relation to the Vauxhall Cross Island site and referred to in theDefendant’s pleadings. Thisrequest was refused but the Defendants noted that the valuation reports wouldbe disclosed “in the course of a proper and orderly discoveryprocess”; and
(iv) in my judgment, the discovery protocol agreedby the ASG Defendants with Rassmal was as set out in Advocate Garrood’sletter but extended firstly to the valuation reports made by BDO LLP and GeraldEve LLP and secondly, to documents in the possession of Crestbridge predatingthe incorporation of MAMS.
6.On 3October 2023, the Court made an order for discovery by affidavit and list. The ASG Defendants completed discovery bymid-December 2023, with affidavits of discovery being sworn by the SecondDefendant personally on his own behalf and on behalf of the First Defendant, bythe Third Defendant and by Mr Hind, a director of the Fourth Defendant. Each of those affidavits contains theendorsem*nt required under paragraph 20 of Practice Direction RC 17/07, signedby Advocate Garrood.
7.Accordingto Advocate Barham for Rassmal, the Plaintiff’s Advocates identified gapsin the discovery provided by the First to Fourth Defendants and set out those concernsin correspondence in early January and February 2024. That correspondence did not resolve theissues and Rassmal issued a summons for specific discovery on 14 March 2024seeking disclosure of various classes of documents, together with further affidavitsproviding additional information about mobile phones and email accounts.
8.By thedate of the hearing, the issues had narrowed but together with the request forinformation, 3 categories of documents remained in dispute, namely:
(i)allcorrespondence, notes, drafts and other documents sent to, received from orproduced by BDO LLP, Gerald Eve LLP or any other valuer approached, consultedor engaged by or on behalf of the First Defendant, whether directly orindirectly (through King & Spalding LLP or otherwise) to value the land atVauxhall Cross, London (“VX”), the shares in VCI Limited, VCIProperty 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 otherdocuments sent to, received from or produced by Ocorian Limited, CrestbridgeLimited or any other trust and corporate service provider approached, consultedor engaged by or on behalf of the First Defendant, whether directly orindirectly (through King & Spalding LLP or otherwise) to incorporate orprovide services to a special purpose vehicle to hold shares in VCI orindirectly 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 byemail, text message or any other medium (the “Third Category”).
9.After thesummons was issued, there appears to have been no further engagement betweenthe parties. On 4 April 2024,Advocate Garrood provided the Plaintiff with a copy of an unsworn affidavitfrom the Second Defendant who stated that:
“12. Following thePlaintiff's request for specific discovery, the First Defendant has, throughJTC Law, requested that Gerald Eve LLP and BDO LLP search their files andproduce copies of all email communications passing between them and any otherpersons with e-mail addresses with the following domains: @alsuwaiket.com@KSLaw.com @careyolsen.com @jtclegalservices.com.
13. Both Gerald Eve LLP and BDOLLP had previously been requested to provide copies of all documents annexed totheir reports and additional documents provided to them for the purposes of thepreparation of their reports. Those documents have already been disclosed tothe Plaintiff. The additional disclosure sought is intended to ensure that anyfurther relevant correspondence (which has not already been disclosed from thesearches which the ASG Defendants have undertaken of the documents in theirpossession or custody) is disclosed. In essence this has been done to ensurethat the Plaintiff will have a complete set of the communications passingbetween the First Defendant (whether directly or indirectly) and Gerald Eve LLPand BDO LPP.
14. Gerald Eve LLP has producedto the First Defendant copies of the email communications which it holds. Thesedocuments are in the process of being uploaded to the e-discovery platformbeing used by the ASG Defendants for a de-duplication exercise to be undertakenagainst the documents already reviewed for disclosure and for a productionreview exercise to be undertaken. The review exercise being undertaken is toensure that no documents which are unrelated to VX and/or VCI have beeninadvertently included in the documents produced by Gerald Eve LLP.
15. BDO LLP has agreed toundertake a search of its records to produce the email communicationsrequested. Upon receipt from BDO LLP of the email communications which itholds, I understand from JTC Law that it is intended that these documents willbe processed and reviewed in the same way as described in paragraph 14above.”
10. Rassmal remains unsatisfied by the steps takenby the ASG Defendants, particularly now that Advocate Barham has reviewed theadditional disclosure and identified gaps.
Specific Discovery
11. The test for specific discovery is well known. As Master Thompson held in Vilsmeier vAI Airports International Limited [2014] JRC 101:
“9...The leading case is VictorHanby Associates Limited v Oliver [1990] JLR337. The relevant principles inHanby were cited more recently in Trust Corporation Limited & Orsv Barclays Private Bank and Trust Limited [2007] JRC043. In summary on aspecific discovery application the applicant is required to show: -
(i) There is a prima facie case that thedefendant has, or has had, documents which have not been disclosed;
(ii) Where there is a prima facie case ofnon-disclosure, the documents in question must be relevant to matters in issuein the case. Relevance is determined, primarily, by reference to the issues pleaded;
(iii) If a prima facie case ofpossession and relevance is made out, the court has to consider whether anorder for specific discovery is necessary for disposing fairly of thecase.”
12. However, since the decisions in Victor HanbyAssociates Limited and indeed, since the Master’s decision in Vilsmeier,the scope and extent of discovery in Jersey has changed immeasurably with thefocus moving from hard copy documents filed in a specific, labelled location toelectronic documents, in a variety of forms, scattered across systems andcustodians. The Royal Court’sPractice Direction on discovery was updated in 2017 by Practice Direction RC17/07 and the Court reiterated that a party’s discovery obligation isabsolute 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 RC17/08 was issued to deal with the ever-increasing challenges presented byelectronic documents. It does notmodify the extent of the obligation set out in Practice Direction RC 17/07 andmust be read alongside it. Relevantelectronic documents must be disclosed, and parties have a continuingobligation so to do. The PracticeDirection gives guidance of the Court’s expectations of parties inrelation to documents in electronic form.
13. In my judgment, when considering applicationsfor specific discovery arising in relation to documents held in electronicform, and in particular whether production is necessary, the Court must take intoaccount what was previously agreed between the parties, or ordered by theCourt, by way of the discovery protocol.
14. Discovery protocols are not set in stone (asMaster Thompson held in Lucaya Trustees Limited and Anor v Vistra TrustCompany (Jersey) Limited [2021] JRC 320, they can be amended or varied). However, in complex civil litigationcases (of which this case is an example), discovery protocols are frequentlythe product of significant work by the disclosing party, enormous scrutiny bythe receiving party, some negotiation, and detailed consideration by the Court.If such protocols are agreed by theparties and/ or ordered by the Court, they provide a benchmark for whatconstitutes a reasonable search, in line with the Overriding Objective and inthe context of the particular litigation. That reasonable search should produce thedocuments necessary for the purposes of the litigation, albeit that asanticipated in paragraph 17(a) of Practice Direction RC 17/08, it may notproduce all of the relevant electronic documents.
15. If issues or queries arise in the course ofdiscovery, the Court would expect the parties to discuss such matters inaccordance with their obligations under, and the guidance given by, PracticeDirection RC 17/08. In so doing,the starting point should be the discovery protocol agreed between the partiesor ordered by the Court rather than the application of unilateral, ad hocsolutions.
First Category
16. In December 2023, the ASG Defendants sworeaffidavits exhibiting lists of documents which they said accurately identifiedthe relevant documents in their possession, custody, or power. Those affidavits contained an endorsem*ntfrom Advocate Garrood stating that he was satisfied the ASG Defendants hadcomplied with their discovery obligations. Yet barely 4 months later, having carriedout a unilateral search of further document sources, the ASG Defendantsdisclosed additional relevant documents. They did so under cover of affidavitsdescribing the searches carried out but not containing any explanation as towhy these document sources had not been considered previously, nor any furtheraverments by them or endorsem*nts by their advocate, that they had compliedwith their discovery obligations.
17. In my judgment, this was not the correctapproach:
(i)PracticeDirection RC 17/08 requires parties to cooperate about disclosure of electronicdocuments and that obligation complements the parties’ continuingobligation of disclosure. Accordingly, rather than alighting unilaterally on apotential solution to a problem, the ASG Defendants should have engaged withthe Plaintiff as soon as the issues were identified;
(ii) the starting point for that engagement shouldhave been the ASG Defendants’ existing discovery protocol and inparticular whether it could, or should, have been flexed to include newcustodians (BDO LLP and Gerald Eve LLP) or applied to a limited cohort ofadditional documents (the documents which the ASG Defendants could compel BDOLLP or Gerald Eve LLP to produce to them).The advantage of applying the existing protocol is that not only has itbeen the subject of proper consideration by the parties and/or the Court, butif it is applied, that party’s approach to discovery will be consistentacross all document sources. If theexisting protocol was insufficient to deal with the issue, the parties could,and should, have proceeded to consider what alternative approach would havebeen appropriate, in accordance with the Overriding Objective and consistentwith the guidance in the Practice Direction. In my judgment, those discussions couldhave occurred notwithstanding the ASG Defendants’ initial stance that theadditional discovery was irrelevant.
(iii) rather than discussing the approach with thePlaintiff, or even applying the date range and/or search terms set out in theirpreviously agreed discovery protocol to ascertain what might be responsive, theASG 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 anyempirical assessment of the likely efficacy of such a search as against theexisting discovery protocol, notwithstanding paragraph 17 of Practice DirectionRC17/08;
(iv) further, unlike the initial disclosure exercisewhich was carried out by the ASG Defendants and their advocate in conjunctionwith their eDiscovery provider, it appears from the comments in their SkeletonArgument (“BDO LLP agreed to search for the relevant emails and hasidentified 5000 documents which BDO LLP is reviewing for relevance”and “Gerald Eve LLP agreed to search for the relevant emails andidentified 207 disclosable emails and attachments”) that the ASGDefendants may have delegated the discharge of their discovery obligations toBDO LLP and Gerald Eve LLP. In myjudgment, wherever practicable, such delegation should be avoided, no matterhow capable the delegee. It runscontrary to paragraph 4(d) of Practice Direction RC 17/08, undermines theelement of consistency in the disclosure process, introduces a furtherpotential point of failure and makes it difficult for the endorsem*nt requiredunder paragraph 20 of Practice Direction RC 17/07 to be meaningful; and
(v) if a party identifies relevant documents afterhaving sworn an affidavit of discovery, they must meet the obligations set outin Practice Direction RC 17/07 and swear a supplemental list, verified byaffidavit and containing the requisite endorsem*nt. That affidavit must set out in sufficientdetail why the Court, and the other parties, can now place confidence in theirassertions that discovery is complete given their previous deficientassertions.
18. In this case, no such affidavit has been filednor has any supplemental list of documents been exhibited. In my judgment, unless and until one isfiled, issues of specific discovery do not arise. Instead, the Court mustapproach this as an application to vary the ASG Defendants’ discoveryprotocol to deal with the new sources.
19. The ASG Defendants submit that:
(i)the FirstCategory extends far beyond documents within the custody, power or possessionof the ASG Defendants and in effect, the request for “allcorrespondence, notes, drafts and other documents…produced by BDO LLP,Gerald Eve LLP” amounts to a request for BDO LLP or Gerald Eve LLP’sinternal working documents to which the ASG Defendants are not entitled; and
(ii) as to the remainder of the documents thesearches carried out have identified “the correspondence and commondocuments falling within the class described in paragraph 1(a)” andinsofar as discovery must be conducted in a proportionate and cost-effectivemanner, the ASG Defendants have discharged that burden.
20. Whilst it may be the case that all or some ofthe correspondence, notes, drafts and other documents produced by BDO LLP orGerald 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 asto what documents they will, or will not, provide to the ASG Defendants. Nor does the Second Defendant depose inhis affidavit that the documents sought under the First Category are not withinthe ASG Defendants’ custody, power or possession. In the absence of any such evidence, thispoint carries limited weight, and the Court has to proceed on the basis thatthe ASG Defendants have a right to documents held by BDO LLP and/ or Gerald EveLLP, albeit that the precise extent of that right, or the documents which mightbe produced pursuant to the right, are unclear.
21. BDO LLP and Gerald Eve LLP searched some, butnot all, of the documents held by them in relation to their engagements. The documents searched were limited byfilter to emails only. In so doing,they do not appear to have differentiated between (1) documents held by thembut in the power of the ASG Defendants, or (2) internal documents for which theASG Defendants had no right to call. Responsive documents were reviewed forrelevance only and relevant documents were disclosed.
22. The question for the Court is as to whether thelimited relevance review of emails is sufficient such that the ASGDefendants’ discovery protocol should be varied accordingly, or whetherthe documents held by BDO LLP and/ or Gerald Eve LLP, and of which the ASGDefendants can require production, should be searched in accordance with thepreviously agreed, discovery protocol.
23. In my judgment:
(i)theapproach adopted by the ASG Defendants has led to a confused position ondiscovery 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 andfalling within paragraph 6 of Practice Direction RC 17/07 (although it isevident that emails have been searched for relevant material);
(ii) there is no evidence that applying thediscovery protocol will produce a disproportionate result or expense (unlikethe position in Lucaya Trustees Limited and Anor v Vistra Trust Company(Jersey) Limited) or otherwise be ineffective;
(iii) there is no empirical evidence to justifysearching only emails nor for adopting any different approach in relation tothese document sources than was adopted under the discovery protocol;
(iv) the fact that searches have been carried outdoes not prevent further searches being ordered, particularly given thespecific warning in paragraph 5 of Practice Direction RC 17/08;
(v) the ASG Defendants should request BDO LLP andGerald Eve LLP to provide them with the documents to which they are entitled (andthey may consider excluding emails which have apparently already been reviewedin their entirety for relevance). Thedocuments produced should be subject to the searches and filtering set out inthe ASG Defendants’ discovery protocol, with discovery being given ofresponsive, relevant documents; and
(vi) that disclosure should be by way of affidavitand list in accordance with the relevant Practice Direction and should providesufficient particulars for the Plaintiff and the Court to understand theprocess that has occurred and why the ASG Defendants submit that they havegiven discovery of the relevant material held by BDO LLP and/or Gerald Eve LLPand which falls within their custody, power or possession.
Second Category
24. Similar, if not identical considerations arisein relation to the Second Category.
25. According to the Second Defendant’ssecond affidavit, Ocorian and Crestbridge were the only trust and companyservice providers approached by ASG.Insofar as Ocorian is concerned, the Second Defendant deposes that:
“Ocorian was notultimately engaged by or on behalf of the First Defendant. The documentationand communications with Ocorian consist solely of the initial enquiries made byKing & Spalding LLP of Ocorian. A complete set of documents to, from and regardingOcorian to the extent they were already in the First Defendant's possession orcustody [has been disclosed]. King & Spalding LLP has separately providedto the First Defendant copies of its communications with Ocorian and a reviewis being undertaken to check if additional documents are liable to bedisclosed. If additional documents are liable to be disclosed, they willbe…”
26. As to Crestbridge, the Second Defendant deposesthat:
“23. The First Defendanthas, however, requested that Crestbridge search its records to identify alldocuments passing between Crestbridge and the First Defendant and its relevantagents and advisers (namely King & Spalding LLP and Carey Olsen Jersey LLP)which pre-date the incorporation of the Fourth Defendant and which relate tothe provision of services in respect of and/or to the incorporation of theFourth Defendant.
24. I am also informed by JTCLaw that searches have been made by Crestbridge of the email accounts of AntonyHind and Chris Cameron (who I understand were the individuals at Crestbridgeresponsible for onboarding the business from the First Defendant) to identifyany communications relating to the incorporation of the Fourth Defendant andwhich pre-date its incorporation.”
27. Documents that were responsive to the searcheswere then subjected to keyword searches. These keywords were different to thoseset out in the ASG Defendant’s document protocol and appear to have beenchosen in an attempt to locate relevant documents, albeit that there is noempirical evidence provided to support such choices.
28. In my judgment:
(i)in theabsence of any contractual relationship between ASG and Ocorian, there is nobasis whereby documents held by Ocorian could be said to be within thepossession, custody or power of the ASG Defendants;
(ii) the ASG Defendants should request Crestbridgeto provide them with the documents to which they are entitled, which willcrystallise 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 ASGDefendant’s document protocol, albeit that there is no empirical evidenceprovided to support any change. Theapplication of such keywords means that not all of the emails that might beresponsive to the keywords in the ASG Defendants’ document protocol willhave been reviewed and emails cannot therefore simply be excluded from thedocuments requested from Crestbridge;
(iv) the documents produced by Crestbridge inresponse to that request should be subject to the searches and filtering setout in the ASG Defendants’ discovery protocol and to the keywords set outin paragraph 25 of the Second Defendant’s affidavit which the ASG Defendantsnow regard as being appropriate. Discovery should be given of responsive,relevant documents; and
(v) that disclosure should be by way of affidavitand list in accordance with the relevant Practice Direction and should providesufficient particulars for the Plaintiff and the Court to understand theprocess that has occurred and why the ASG Defendants submit that they havegiven discovery of the relevant material held by Crestbridge and which fallswithin their custody, power or possession.
Third Category
29. This category is rather different to the firsttwo. The First to Third Defendantsgave discovery, in accordance with their discovery protocol, and swore therelevant affidavits, both of which contained the requisite endorsem*nt fromAdvocate Garrood. Unlike the firsttwo categories of documents, no further document sources have been identifiedor reviewed, nor have any further documents been disclosed. This is thereforean 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 SecondDefendant have been disclosed and no text messages or other communicationsbetween the various custodians have been disclosed. It regards this as an“inherently unlikely” position and submits that it isindicative of the fact that relevant documents exist and have not beendisclosed; and
(ii) secondly, whilst ASG has disclosed textmessages between Abdullah Al Suwaiket / Ibtissam El Diry and Nasser Al Shawaffrom 2016 through to 2020, which were available on their mobile phones inSeptember/October 2023, they have not disclosed:
(a) any text messages or other communicationsbetween the three ASG custodians; or
(b) copies of messages with Robert Law of Rassmal.
31. The Plaintiff submits that relevant documentsclearly exist and that an order for specific discovery should be made. Further, it suggests that the reason forthe non-disclosure is because the custodians themselves harvested their mobilephone data (by taking images of the relevant messages) rather than allowingeDiscovery providers to extract the material.
32. As to the first complaint, the Second Defendanthas deposed that:
“30…neither I, MrsIbtissam El Diry or my father Mubarak Al Suwaiket, the Third Defendant,habitually communicate in writing with each other on matters of business suchas in respect of the VX project, rather we tended to speak with each other inperson or via telephone. I believe the discovery obligations in respect of theclasses of documents identified in paragraph 1.c. of the Summons iscomplete.”
33. Further, the Third Defendant states in hisaffidavit of discovery that:
“I am 74 years of age. Ido not conduct business communications by WhatsApp or text messaging.”
34. In my judgment, whilst the fact that only 10internal emails have been disclosed might be unexpected insofar as thePlaintiff is concerned, the Defendants have provided explanations and AdvocateGarrood has provided an endorsem*nt that he is satisfied that they havecomplied with their discovery obligations. In my judgment, the fact that a lowerthan expected number of documents might have been disclosed does not mean thatthere 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 thecomplaint about the absence of text messages or other communications betweenthe three ASG custodians. As withthe first complaint, I am not satisfied on the basis of the evidence before methat there is any or any prima facie evidence that the ASG Defendantshave documents relating to messages between themselves which have not beendisclosed.
36. As to the complaint that the ASG Defendantshave not disclosed back to the Plaintiff messages from Robert Law, this couldbe evidence that the defendants have, or have had, documents which have notbeen disclosed. However, in hisaffidavit of discovery, the Second Defendant explained why any disclosure ofmessages by the ASG Defendants might be limited:
“When the Custodiansupgraded their mobile phones from time-to-time they did not maintain a back-upof the devices nor store data in a cloud. The images of the WhatsApp andtext messages were contemporaneously preserved and are the totality of theWhatsApp 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 bythe First and Second Defendants sets out those documents which the First and/orSecond Defendants used to have in their possession, custody or power. It only refers to originals of documentslisted in Schedule 1 (the documents disclosed by the First and/or SecondDefendants) and does not mention any messages. There is an inconsistency between thecontents of the affidavit and the List of Documents.
38. However, having specifically reviewed thePlaintiff’s summons for specific discovery, the Second Defendant hassworn a further affidavit confirming that “the discovery obligationsin respect of the classes of documents identified in paragraph 1.c. of theSummons is complete”.
39. In my judgment, given the contents of the twoaffidavits sworn by the Second Defendant, one of which contains an endorsem*ntfrom Advocate Garrood, I am not satisfied that there is prima facieevidence that the ASG Defendants have documents relating to messages, whetherwith Robert Law or otherwise, which have not been disclosed. Accordingly, I decline to order furtherspecific discovery.
40. Given my decisions in relation to the First andSecond Category documents, the ASG Defendants will have to file furtheraffidavits in accordance with Practice Direction RC 17/07. In so doing, theyshould correct the deficiency in Schedule 2 of their lists of documents.
41. In the absence of prima facie evidence that theASG Defendants have messages that have not been disclosed, there is no basisfor requiring the ASG Defendants’ eDiscovery provider to collect datafrom their mobile phones. However,insofar as the custodians themselves were responsible for collecting their owndata and/or responsive documents, I do not think that such an approach is inaccordance with best practice. Inmy judgment, unless impracticable:
(i)where aneDiscovery provider is retained by a party, that eDiscovery provider should beresponsible for collecting and searching electronic documents, not least inorder to ensure that documents are kept in their original format together withtheir metadata in accordance with Practice Direction RC 17/08; and
(ii) if it is to be suggested that data custodiansmight collect and/or search their own records, the issue of document collectionand searching should be raised with the other parties in accordance with thePractice Direction, as soon as contemplated, and to the extent that an approachcannot be agreed, it should be referred to the Court.
The Request for Further Information
42. Paragraph 2 of the Plaintiff’s summonsseeks an order that the First, Second and Third Defendants provide furtheraffidavits explaining:-
“what steps have beentaken to search for, review and disclose documents produced or stored on mobiletelephones and generic email accounts including:
a. Whether the email addressesvci@alsuwaiket.com, suwaiket@yahoo.com or halloya@icloud.com (the "EmailAccounts") are within their control;
b. What mobile telephonesIbtissam El Diry, the Second Defendant and Third Defendant currently have intheir possession or control (the "Current Phones");
c. When they acquired theirCurrent Phones;
d. What mobile phones they havehad in their possession or control since 2016 until they acquired their CurrentPhones (the "Previous Phones");
e. When they changed theirPrevious Phones;
f. What accounts (such asBlackberry, Samsung, Google, Microsoft or iCloud accounts) they use on theCurrent Phones or used on their Previous Phones (the "Accounts");
g. What steps they have takento search for electronic documents on the Current Phones, the Accounts and theEmail Accounts; and
h. Why they did not take stepsto preserve documents on any Previous Phones when litigation was contemplatedby 2020 at the latest.”
43. The Plaintiff’s Skeleton Argument doesnot refer to paragraph 2 of the summons, and does not identify it as being inissue, but invites the Court to make an order in terms of a draft order whichincludes a paragraph reflecting the contents of paragraph 2.
44. The ASG Defendants submit that they haveanswered the queries raised in paragraph 2 insofar as they can, in theiroriginal affidavits of discovery, in correspondence from Advocate Garrood dated13 March 2024 and 18 April 2024, and in an affidavit from the Second Defendantin which he confirmed the contents of Advocate Garrood’s letters.
45. Affidavits of discovery are important, if notcritical, documents. However, theyare not pleadings and are not to be judged against some artificial notion ofperfection. They are required inorder for a party to explain, in their own words, how they have dischargedtheir obligation of discovery. Inmy judgment, an affidavit of discovery should inform both the receiving partyand the Court, with a reasonable degree of particularity, about the exercisethat has been undertaken, the scrutiny that has been applied, any issuesidentified, the quality control process, the confidence that can be attached tothe output and provide sufficient information not only to address likelyqueries, but also to allow those queries to be articulated. I remind parties on the observations ofMaster Thompson in Smith v SWM [2017] JRC 026 in which he endorsed ChiefMaster Marsh’s comments in Astex Therapeutics Limited v AstraZeneca AB[2016] EWHC 2759 (Ch):
“15. During the course of the hearing ofAstex's application, the form in which the claim for privilege was made by AZwas described as "conventional". I accept that the claim for legaladvice privilege is described adequately. However, although it may have beenconventional at one time to state that other documents are "by theirnature privileged", such a statement has no place in modern litigation,let alone litigation of very real complexity. It is clearly unhelpful, withoutdescribing the documents said to be privileged, to say that 'their nature' explainswhy they are privileged because the recipient of the list of documents has noway of knowing which documents, or classes of documents, are being referredto.”
46. In this case, the initial affidavits ofdiscovery filed by the ASG Defendants were inadequate in that they containedinsufficient information about the matters set out in paragraph 2 of theSummons. In my judgment, those deficiencies were corrected by AdvocateGarrood’s correspondence and its subsequent adoption by the SecondDefendant in his affidavit sworn on 18 April 2024 and any further order isunnecessary. I therefore decline to make an order in terms of paragraph 2 ofthe summons.
Authorities
Security Interests (Jersey) Law 2012.
Vilsmeierv AI Airports International Limited [2014] JRC 101.
VictorHanby Associates Limited [1990] JLR 337
LucayaTrustees Limited and Anor v Vistra Trust Company (Jersey) Limited [2021]JRC 320.
Practice Direction RC17/08
Smithv SWM [2017] JRC 026.
AstexTherapeutics Limited v AstraZeneca AB [2016] EWHC 2759 (Ch).
