In the postscript of Square Global v Leonard  EWHC 1008 (QB), handed down on 28 April, Mr. Jon Turner QC reiterated the ‘fundamental’ importance of litigants not cherry-picking documents that they consider to be ‘relevant’ to the case when completing the disclosure process.[i]
Although the facts of this action regarded an employment dispute, the sitting Deputy High Court Judge’s comments on fulfilment of disclosure duties are relevant to civil litigation more generally, including personal injury claims.
In the case of Square Global, it was alleged that the defendant (not the defendant’s solicitors) had been ‘remiss’, firstly, for conducting a personal review of documents without the involvement of his solicitors, and secondly, for failing to exercise due diligence when he disclosed 3 cover emails with ‘important attachments’ omitted.
However, the defendant rejected any inference that the defendant’s solicitors had not participated in the document review. Further, it was asserted that there was ‘nothing untoward in the Defendant undertaking searches for potentially relevant documents, particularly in circumstances where the party is a private individual who holds a limited number of documents and is well aware of where relevant documents are located’.
Regardless, the consequence of the claimant’s allegation was that the defendant had exhibited a ‘lack of candour’ in having excluded the relevant email attachments. However, claimant counsel expounded (in written submissions) that it did not necessarily follow that the defendant’s legal representatives had breached professional obligations owed to their client, in accordance with practice direction 31A para 4.4 (the duty to ensure that clients understand the duty of disclosure under CPR 31).
Does the practice direction (PD), as the claimant readily accepted, convey that solicitors ‘are under an obligation only to advise their clients properly on their disclosure obligations’?
Having considered counsels’ submissions on this issue, Mr. Turner QC concluded that there had been no breach of professional duties by either side, giving significant weight to the ‘immense strains’ caused by ‘expedited’ proceedings.
In spite of this finding, the judge made a point of emphasising that a strict reading of PD 31A para 4.4 in isolation is no guarantee of compliance:
‘I must … underline that … [PD 31A para 4.4] … does not (and is not intended to) set out the extent of a solicitor's relevant disclosure duties in civil litigation. It is fundamental that the client must not make the selection of which documents are relevant ...’
He went on to cite paragraphs 18-02 and 18-09 of Matthews and Malek on Disclosure (5th edition, 2017), which provides a more detailed explanation of the solicitor’s specific duties during the disclosure phase:
‘“A solicitor's duty is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. This duty owed to the court, is:
"one on which the administration of justice very greatly [depends], and there [is] no question on which solicitors, in the exercise of their duty to assist the court, ought to search their consciences more”.
“The solicitor has an overall responsibility of careful investigation and supervision in the disclosure process and he cannot simply leave this task to his client. The best way for the solicitor to fulfil his own duty and to ensure that his client's duty is fulfilled too is to take possession of all the original documents as early as possible. The client should not be allowed to decide relevance—or even potential relevance—for himself, so either the client must send all the files to the solicitor, or the solicitor must visit the client to review the files and take the relevant documents into his possession. It is then for the solicitor to decide which documents are relevant and disclosable”’.
Full text judgment can be accessed here.
[i] Nick Hilborne, ‘Client “must not select documents” for disclosure’ (6 May 2020 Litigation Futures) <https://www.litigationfutures.com/news/client-must-not-select-documents-for-disclosure> accessed 7 May 2020.