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Fraudulent documents: Interim interrogations

Alexander Robson

What steps are open to a party with reason to doubt
the authenticity of an electronic document disclosed by the other side?

One tool is CPR 25.1, which empowers the Court to
order an “inspection of relevant property“. In McLennan
Architects Limited v Jeremy Jones and os [2014] EWHC 2604 (TCC) Akenhead J provides helpful guidance on the
scope of this provision.

The Case

In McLennan it
was alleged that
certain emails had been forged for the purposes of litigation. There was a
clear basis for the allegation: at least one email, purportedly dated 18
December 2006, referred to Cyclone Gonu; but Cyclone Gonu did not in fact occur
until June 2007.

Enquiries of the suspicious emails by the
Claimant’s IT expert produced no evidence of tampering. The Claimant then
turned its attention to the Defendants’ laptop. The Claimant asked that its
expert take a forensic image of the hard drive of the device, review an email
account, and carry out a search for certain keywords across the entire device. It was said in response that this request was too
wide and unnecessarily intrusive. Concerns were raised that the device in
question contained much information which had absolutely nothing to do with the
dispute between the parties.

The Judge, describing the above objections as “very real and proper”, took issue with the reasonableness of
the request for inspection.

The principles

The Judge considered that the initial request for
inspection was too broad; but he acceded to a significantly narrower form of
Order. Thus, the Claimant’s
expert was permitted, in the presence of the Defendant’s own expert, to examine
the hard drive, locate the four emails in question including related metadata, and
make two exact copies for each party. The Claimant’s expert was required to
provide an undertaking of confidentiality, both to the Defendants and to the
Court.

The following principles applicable to
applications under CPR 25.1 emerge from Akenhead J’s judgment:

1. The
   primary focus must be on the overriding objective when exercising a discretion to
   make this type of order. That requires that particular attention be paid to the
   cost of the exercise envisaged. The scope of the investigation must be
   proportionate both to the sums at stake and the centrality of the issue to the
   claim.
2. The
   relevant test is one of “reasonable necessity”: the scope of the investigation
   must be limited to what is reasonably necessary in the context of the case.
3. Regard
   should be had to the likely contents (in general) of the device. In particular,
   any search should exclude possible disclosure of privileged documents.
4. Also
   excluded should be confidential documents which have nothing to do with a case
   in question.
5. Regard
   should also be had to the human rights of people whose information is on the
   device and, in particular, where such information has nothing or little to do
   with the case in question.
6. It would
   be a rare case in which it would be appropriate for there to be access allowed
   by way of taking a complete copy of the hard drive of a computer which is not
   dedicated to the contract or project to which the particular case relates.
7. Usually,
   if an application such as this is allowed, it will be desirable for the Court
   to require confidentiality undertakings from any expert or other person who is
   given access.

Practical advice

Three key points arise for practitioners:

1. Avoid the
   risk of overreaching; the Court will be quick to condemn a perceived fishing
   expedition.
2. Pay particular
   regard to the content of the device in question: is it likely to contain
   privileged or highly confidential material? If so address this head-on with
   protective mechanisms.
3. Be imaginative in formulating the relief sought;
   actively consider how prejudice to the respondent could be minimised. Attendance
   of both experts at inspection? Undertaking of confidentiality to the Court? Limited
   scope of search?