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  EWHC 2604 (TCC) Akenhead J provides helpful guidance on the
scope of this provision.
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 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
The following principles applicable to
applications under CPR 25.1 emerge from Akenhead J’s judgment:
Three key points arise for practitioners: