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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Montague Goldsmith AG (In Liquidation) v Goswick Holdings Limited [2024] JRC 176 (10 September 2024) URL: http://www.bailii.org/je/cases/UR/2024/2024_176.html Cite as: [2024] JRC 176 |
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Reasons for the decision in relation to discovery, amended pleadings and directions
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Before : |
M. J. Thompson, Esq., Commissioner, sitting alone |
2018/203 & 2018/267
2018/203
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Between |
Montague Goldsmith AG (In Liquidation) |
Plaintiff |
|
And |
(1) Goswick Holdings Limited (2) Sandstone Holdings UK Limited (3) Merrivale Developments Limited |
Defendants |
2018/267
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Between |
G H Investment Limited (in its capacity as trustee of the Indar Singh Gill Trust) |
Plaintiff |
|
And |
(1) Karim Mawji (2) Montague Goldsmith AG (In Liquidation) |
Defendants |
Advocate R. O. B. Gardner for Montague Goldsmith AG and Karim Mawji.
Advocate S. J. Alexander for Goswick Holdings Limited, Sandstone Holdings UK Limited, Merrivale Developments Limited and G H Investment Limited
judgment
the COMMISSIONER:
1. This judgment contains the written reasons for my decisions recorded in an Act of Court dated 18 July 2024 in respect of two applications for specific discovery, an application to amend pleadings and directions, in particular concerning the instruction of experts.
2. The parties to this dispute are Montague Goldsmith AG (In Liquidation) (the Plaintiff in action 2018/203) and Karim Mawji (the Defendant in action 2018/267) who are represented by Bedell Cristin. In this judgment, I refer to them as the Plaintiffs for convenience.
3. The other parties to the dispute are Goswick Holdings Limited ("Goswick"), Sandstone Holdings UK Limited ("Sandstone") and Merrivale Developments Limited ("Merrivale"), the Defendants in action 2018/203, and G H Investment Limited as trustee (the Plaintiff in action 2018/267). These parties are all represented by Mourant Ozannes, and I refer to them in this judgment as the Defendants.
4. I summarised the background to this dispute in a judgment dated 15 February 2024 (Montague Goldsmith AG v Goswick Holdings Limited and Ors [2024] JRC 170), where I set out my written reasons in relation to two earlier summonses for discovery, one issued by the Plaintiffs and one issued by the Defendants for the orders made in an Act of Court dated 15 September 2023. I refer to this judgment as the 15 February 2024 Judgment. For the purposes of these proceedings, the background to the dispute and the procedural history up to the date of the judgment was set out at paragraphs 3 to 15 which I adopt for this judgment.
5. Following the handing down of the 15 February 2024 Judgment, I also ordered that any further applications in respect of discovery either party wished to bring had to be made on the first available date after Easter 2024. This led to the following applications:
(i) A summons issued by the Defendants seeking further discovery ("the Defendants' discovery summons");
(ii) A summons dated 6 March 2024 issued by the Plaintiffs, also seeking further orders for discovery (the "Plaintiffs' discovery summons")
(iii) An application by the Plaintiffs for permission to file and serve a Re Re Amended Order of Justice and a Re Amended Answer and Counterclaim; and
(iv) The determination of the summons for directions issued by the Defendants for the hearing that took place on 15 September 2023, which summons was adjourned to a date to be fixed after provision of the discovery required by the Act of Court of 15 September 2023.
6. This judgment sets out my reasons for each of the decisions made recorded in the Act of Court of 18 July 2024.
7. By their summons dated 20 February 2024, the Defendants, through Advocate Alexander, sought the following relief:
(i) All relevant data that is in the possession, custody or control of Urs Josef Steiger (as liquidator of MGAG) (Mr Steiger) that:
(a) was sent to and from the following email account used by Mr Steiger: [email protected] (to which reference is made in document VOL004_00000041);
(b) is stored at the hard copy document storage facility in Buchs (to which reference is made in document VOL004_00000041);
(c) is stored at the document storage facility referred to as the DHL facility (to which reference is made in document VOL004_00000038); and
(d) is stored in the "basement" (to which reference is made in document VOL004_00000038);
(ii) An explanation as to which of the documents disclosed under cover of the second and third affidavits of Heather Watters sworn on 27 October 2023 and 24 November 2023 had been redacted on the basis of privilege and which documents had been redacted on the basis they contained irrelevant and / or confidential information;
(iii) Whether or not certain documents had been correctly redacted;
(iv) A re-run of certain searches carried out by the Plaintiffs as described in the third affidavit of Heather Watters at paragraphs 26 to 28, or alternatively an explanation as to why the terms used would result only in irrelevant or privileged documents not being disclosed;
(v) A requirement that the Plaintiffs require a Mr Willingsdorfer and a Ms Beeler to grant to the Plaintiffs' service provider access to all their relevant email accounts; and
(vi) That the Plaintiffs applied certain additional search terms to the existing data universe.
8. Advocate Alexander for the Defendants made the following submissions.
9. In relation to documentation held by Mr Steiger, this followed on from paragraph 95 of the February 2024 Judgment where I had concluded that the Defendants had persuaded me that discovery from Mr Steiger was not adequate. The Plaintiffs were therefore ordered to request from Mr Steiger that he provide copies of all emails between the Plaintiffs or sent to Mr Steiger for review by Bedell Cristin.
10. Advocate Alexander complained that only a further ninety-two documents were disclosed and that there were no communications between Mr Mawji and Mr Steiger about his role, the ongoing projects, or Goswick Holding Investment Limited's position as an unsecured creditor of MGAG on the basis of its counterclaim. There was also no up to date financial information about MGAG.
11. In response to the discovery order, Mr Steiger had sworn an affidavit dated 27 March 2024. In his affidavit at paragraph 12, he explained that the email account he used for the MGAG liquidation was his Panaccount email, [email protected]. Panaccount is a reference to Panaccount Consulting Establishment where Mr Steiger was director and CEO. However, his appointment as liquidator of MGAG was a personal one, although he conducted his business as liquidator through his Panaccount email server.
12. In his affidavit, Mr Steiger explained the following at paragraphs 13 to 15:
"13. My [email protected] email has however, showed up as being either the recipient of an email from, or sender of an email to, an email address ending with @panaccount.ch in a very small handful of cases.
14. This is because I very occasionally send or receive work related emails when out of the office (when I do not have access to my Panaccount email for privacy reasons). As a result, occasionally emails are forwarded from a panaccount email address to my [email protected] email by one of my colleagues when I am travelling.
15. If an urgent email address comes to [email protected] or I am required to move a work matter along whilst I am not at the office, and I am aware that such email has been received or action is required (having had a chasing phone call from the sender or requestor), I direct a member of the Panaccount team to forward the email to me at my personal [email protected] email address, cc'ing my [email protected] so I can action the task."
13. His affidavit then continued at paragraphs 16 to 18 as follows:
"16. Alternatively, if following a phone call with either the sender or requestor, it may not be necessary for the email to be forwarded, and I can instead deal with the enquiry by sending an email from my personal [email protected] email address, cc'ing @panaccount.ch email address to deal with the issue.
17. Absent these two very distinct situations, I do not conduct any professional business (including as liquidator of MGAG) from my [email protected] email address.
18. I can categorically state that, since any work related email I deal with from my personal account, [email protected], comes from or is copied to a panaccount email address, (all of which have already been searched) any relevant emails which have been dealt with in the way described above have already been disclosed."
14. Because of the reference to the personal email account at [email protected], Advocate Alexander sought an order that this email account be searched for all relevant data. In support of his argument, he referred to an exchange of emails between Mr Mawji and Mr Steiger that took place on Friday 6 March 2020. However, this sequence preceded an email which had been redacted which gave rise to concern that there been other communications from Mr Steiger's personal account. The emails from his personal account were copied to a Mr Willingsdorfer at panaccount.je and Mr Willingsdorfer replied to Mr Mawji, copied to Mr Steiger's personal account.
15. In relation to this missing email, during the hearing I was shown a copy. It was an email sent from Mr Mawji to Mr Steiger at his personal email account on 5 March 2020 and was copied to Mr Willingsdorfer and to Mr Steiger's personal account. Having looked at the email, I was satisfied that its redaction was appropriate because it was privileged, albeit it would have been helpful if only the body of the email had been redacted rather than the parties to it, because that might have allayed Mr Alexander's concerns.
16. Advocate Alexander was also concerned that there had not been a proper process explaining how documents had come to be extracted from Panaccount servers and whether this was carried out under the supervision of Mr Steiger, or whether it was carried by an independent data service provider.
17. The next category of documents sought by Mr Alexander all turned on what storage facilities were maintained by Mr Steiger. In his affidavit at paragraphs 20 to 22, Mr Steiger explained that there were two data repositories; one in Buchs which was where Mr Steiger lived and one in Vaduz which was where Panaccount carried out its business. He also explained that wherein different documents there was a reference to a storage facility in Buchs and a DHL storage facility, this was a reference to the same storage facility in the same location.
18. He also explained that when he had generated hard copy documents for the liquidation of MGAG, these were held in Buchs.
19. Advocate Alexander pointed to a number of documents where this was not clear. He referred to an email dated 6 January 2020 between Mr Steiger and Mr Mawji, where Mr Steiger stated:
"I was already down in our basement to go through all the documents of MG and Integry but couldn't find anything related to them. Need definitely to go to the DHL store to search further. Will do that on Wednesday."
20. Advocate Alexander posed the question as to why Mr Steiger needed to go and look in the basement in Vaduz when according to his own affidavit everything was held in Buchs. Mr Alexander was therefore concerned that all relevant storage areas had not been searched. He also contrasted this explanation with the Skeleton Argument filed on behalf of the Plaintiffs at paragraph 5.5 which stated there was "only one hard copy facility"; yet Mr Steiger's own affidavit accepted there were two facilities.
21. In relation to the question of redactions, while an explanation had been provided about redactions at paragraph 23 of the second affidavit of Heather Watters, when the list was provided it was not clear whether documents that had been redacted had been redacted on the basis of claims to privilege or that material was irrelevant.
22. This lack of clarity about redactions led to the request that the Court review a specific bundle of documents identified in the summons to see whether the redactions had been correctly applied.
23. In relation to the use of exclusionary terms, there had been no consultation between Bedell Cristin for the Plaintiffs and Mourant Ozannes for the Defendant in relation to this approach. Advocate Alexander therefore complained that he did not understand what process had been followed.
24. He also objected to certain exclusionary terms which had been used which he contended should not have been applied to exclude documents.
25. The first of these was Invescap, by reference to an email dated 12 August 2004, between Mr Mawji and a Mr Russell. The email referred to a computation relating to this transaction. The email address used by Mr Mawji was [email protected]. Invescap was clearly a relevant term. Mr Alexander submitted that the name Invescap appeared in one hundred documents of the Defendants' discovery. This had been referred to in a letter from Mourant Ozannes to Bedell Cristin dated 8 July 2024.
26. In relation to EFG, given there were financing arrangements in place in relation to the projects, it was difficult to see why these were excluded. EFG were the bank for Hillworth who received fees on behalf of Mr Mawji.
27. HSBC was referred to in a letter dated 1 July 2004 from MGAG in relation to Sandstone, stating that all future rental service charges and insurance monies would be kept in separate designated bank accounts held at HSBC Republic Bank in Jersey. The Plaintiffs had also made a payment to an account at HSBC to provide security for costs.
28. Mr Darwin was an introducer of deals. His involvement all related to the circumstances in which agreements might have been concluded. The fact that he received introductory fees was referred to in a summary of profit costs for Milhouse Gloucester Limited (G1988 of CaseLines).
29. The reference to Shilpa arose because she was one of the shareholders when the business of Montague Goldsmith Limited was transferred to MGAG in 2003 (see G2018 of the CaseLines bundle). The term was relevant because the fact of this assignment having been made was denied at paragraph 10 of the Re Re Amended Answer.
30. In relation to Montague Goldsmith Capital AG, this was referred to in an extract of a note from the liquidator which referred to Montague Goldsmith AG funding certain litigation in South Africa.
31. In relation to the requests concerning extraction of email accounts of Mr Willingsdorfer and Ms Beeler, this was because they were copied into emails from Mr Steiger where he had used his personal email account. They should therefore provide all email accounts so that they could be reviewed.
32. In relation to the proposed additional search terms, these were sought because this was the first opportunity the Defendants had had to review the exclusionary terms used as those terms had been applied without reference to the Defendants or Mourant Ozannes.
33. In relation to the request to add the names Elik, Bults, Simon and Vischer, this was because they had signed the assignment from Montague Goldsmith Limited to MGAG.
34. In relation to Mr Gower, he was a director of Montague Goldsmith as was clear from the report of directors for the year ended 31 March 2000.
35. The request to add Mr Dawson was for the same reason that the name Dawson should not have been used as an exclusionary term.
36. Advocate Gardner for the Plaintiffs made the following submissions in response.
37. In relation to Mr Steiger's discovery, the extraction of data was carried out by Bedell Cristin. Mr Steiger was not involved. The process followed also went beyond that required by the Act of Court of 15 September 2023. The process followed uploaded the entirety of his email accounts at Panaccount. This was clear from the second affidavit of Heather Watters where she described the data collection process as follows:
"11. The Steiger Collection was carried out by Speedcom AG, a professional third-party IT and telecommunication company based in Liechtenstein.
12. The following email accounts were searched: [email protected]; [email protected]; [email protected]; and [email protected] and all emails from/to/bcc/cc @montgold.com, which captures [email protected], and @invescap.je since 1st April 2009 to 10 October 2023 were collected.
13. No responsive emails were found in [email protected] following the search."
38. At paragraph 39 of Heather Watters' third affidavit, she explained that she instructed Speedcom "and directed them as to what document universe to search and what search parameters to apply".
39. Mr Steiger, in his affidavit at paragraphs 13 to 18, had addressed the position in respect of his personal email account and there was no evidence to go behind that explanation which had been given on oath.
40. The fact that the communications that Advocate Alexander felt ought to be there were not there was not a reason to require further searches; rather it was a matter for cross-examination at trial.
41. All the emails referred to showed that either Mr Steiger copied in his own Panaccount email or copied any email from his private account to Mr Willingsdorfer or Ms Beeler, whose email accounts at Panaccount had been extracted.
42. In relation to document storage facilities, the affidavit of Mr Steiger at paragraph 22 was clear. The only confusion that had arisen was at paragraph 5.5 of Bedell Cristin where they stated, "There is only one hard copy facility". That was an error on Advocate Gardner's part for which he apologised, but it was clear from the affidavits filed that there were two storage facilities but only one contained relevant documents. This was not only set out in Mr Steiger's affidavit, but also in the fifth affidavit of Heather Watters at paragraph 20. The fact that documents had been found in one of the two storage facilities did however mean that the earlier affirmation of discovery provided by Jordan Constable on behalf of Bedell Cristin for the Plaintiffs had to be corrected. That however had also been addressed by the fifth affidavit of Heather Watters at paragraphs 13 to 15. There was therefore no basis to go behind these affidavits.
43. In relation to the question of redaction, Advocate Gardner accepted that the list of documents provided had not set out which documents were redacted on grounds of privilege, and which were redacted on the grounds that they contained irrelevant and / or confidential information.
44. In relation to the use of exclusionary terms, Advocate Gardner explained that by reference to the third affidavit of Heather Watters at paragraphs 24 to 28, that the difficulty arose that the search terms required to be used by the Court produced a large amount of irrelevant documents. This was because many of the documents were, what was described as, "family documents", i.e. they contained lots of attachments or cross-referred to other documents. The approach taken by Bedell for the Plaintiffs was therefore to separate out each document that was part of a family of documents and firstly apply the search terms approved by the Court to each document being produced or on an individual basis and secondly a list of exclusionary search terms drawn up by Bedell Cristin and the Plaintiffs. If a document itself did not respond to a search term and did contain one of the exclusionary terms, then that document was not reviewed any further. This meant that Bedell then only reviewed those documents which did not respond to exclusionary terms on the basis that they might be potentially relevant as being attachments to documents or part of a chain of documents that were relevant.
45. Advocate Gardner accepted that the process followed had not been explained until production of the third affidavit of Heather Watters, and there had been no consultation with Mourant Ozannes in advance of applying this process.
46. In relation to the request to re-run searches without certain exclusionary terms, Advocate Gardner contended this was not necessary.
47. The reference to Invescap was not necessary because Mr Mawji was a search term. The relevant email account, invescap.je., had not been looked at expressly, but the Defendants had not asked the Plaintiffs to do so.
48. In relation to the email of 12 August 2004, this was of minor relevance. It was an example of an SPV that paid a commission to MGAG. It was also picked up by a search term and had been disclosed. There was therefore no need to exclude the search term invescap.je.
49. The reference to EFG Bank was not relevant to any of the SPVs, the subject matter of the present proceedings.
50. The reference to HSBC was a reference to the Royal Court's own bank account where monies were provided by the Plaintiff by way of security for costs. The reference at page G1830 was simply a reference to the bank accounts used to collect rental service charges and insurance monies. It was not relevant to what the parties had agreed in relation to a division of profits.
51. In relation to using the terms 'Roger' or 'Darwin', there was no evidence that Mr Darwin had any relevant evidence to give and therefore that the search term should be used. The document relied upon by Mourant Ozannes had also been in the original trial bundle and therefore had been disclosed some five years ago. It was therefore far too late to start raising this issue at this stage.
52. In relation to the reference to Shilpa, apart from the fact of her being a shareholder of Montague Goldsmith Limited, there was no reference to her in any of the other documents and no evidence that she played any role. Montague Goldsmith Capital had nothing to do with these proceedings. This could be seen from the fact that in the original Order of Justice in action 2018/203, the original plaintiff had been described as Montague Goldsmith Capital AG (in liquidation). This had been amended as part of the first round of amendments to the Order of Justice which had been agreed by consent by the Defendants, and where the reference to Montague Goldsmith Capital was replaced with reference to MGAG.
53. In relation to the request concerning Mr Willingsdorfer and Ms Beeler, this had been dealt with by the affidavit of Mr Steiger and there was no reason to go behind his explanation as there was no evidence that they had used any personal email accounts.
54. In relation to the Defendants' request to expand the search terms, the Defendants were trying to expand search terms agreed in 2019 and expanded in September 2023.
55. Secondly, the documents relied upon were all in the trial bundle and therefore the request for broader search terms could have been raised earlier and, at the latest, the search terms approved by the Court on 9 March 2022.
56. Mr Bults and Mr Vischer had simply executed the assignment from Montague Goldsmith Limited to MGAG, but there was no evidence they had any other involvement in these proceedings.
57. In relation to Mr Gower, he resigned in June 1999. He was also not a director for the previous director statement ending on 31 March 1999. He was therefore only a director for some three months and it was therefore not proportionate to research all the discovery applying this term. In addition, he ceased to be a director by the time of the acquisition of the properties in dispute.
58. Advocate Alexander in reply made the following points.
59. Speedcom who were used by Bedell Cristin to extract data were not an e-discovery provider. Little was known about the process they followed and there had been no report provided.
60. The email of 6 January 2020 from Mr Steiger was ambiguous and required clarification.
61. The redacting process of documents had not been explained and there were twenty-one documents of concern.
62. In the use of exclusionary terms, this should have been explained before and the description now advanced was different from that set out in the third affidavit of Heather Watters.
63. The fact that this explanation had not been provided previously was contrary to paragraph 5 of Practice Direction 17/08 on electronic discovery.
64. In relation to Mr Willingsdorfer and Ms Beeler, it was clear they were data custodians and therefore their personal email accounts should have been extracted.
65. In relation to the additional terms, these all came from documents provided. While some had been provided in the original trial bundle, they had been provided again, which called into question the Defendants' discovery.
66. The applicable legal principles on the specific discovery application were not in dispute between the parties. The leading authority on such applications is the decision of Hanby v Oliver [1990] JLR 337. I most recently explored this in MacLeod v The Channel Islands Cooperative Society [2024] JRC 109 at paragraphs 83 and 84. These are the principles I have applied.
67. In relation to the request to review Mr Steiger's personal email account, I was not satisfied that it was appropriate to go behind the affidavit of Mr Steiger who had explained at paragraphs 13 to 18 his use of a personal email account. There was no evidence produced by the Defendants sufficient to displace the evidence he had given.
68. Similarly I was not persuaded it was appropriate for any further searches to be carried out for hard copy documents. The only ambiguity in relation to basement facilities was that contained in the Plaintiffs' Skeleton Argument at paragraph 5.5 referred to at paragraph 42 above. However again, the affidavit of Mr Steiger was clear. Ms Watters in her fifth affidavit also quite properly corrected the earlier affirmation of Jordan Constable sworn on 5 September 2019 in relation to these hard copy documents.
69. In relation to the question of redaction, in relation to the twenty-one documents redacted, I ordered the Plaintiffs to explain which documents had been redacted on grounds of privilege and which documents had been redacted because they contained irrelevant and confidential information. It is not enough simply to redact documents without explaining the basis of the redaction. In particular, the distinction whether a document is redacted on grounds of privilege or redacted on grounds of confidential information is critical because there are different bases for challenging such redactions.
70. I should also add, as observed at paragraph 15 above, that where documents are redacted, the list of documents should then identify the creator of the document and if it is a communication, the sender and recipients of that document. The redaction should therefore generally be focused on the content of the document as distinct from redacting the entirety of the document as a whole.
71. In relation to the exclusionary terms applied, while this had been set out in the second affidavit of Ms Watters, it was only at the hearing that I understood the explanation given by Ms Watters and the approach taken. However, that is not a reason to go behind that approach. In my judgment, given the number of documents that were produced it was a reasonable approach to take because it excluded from tier 1 documents that did not respond to the search terms that I had approved in March 2022 (as Master) and which only contained one or more of the exclusionary terms.
72. What should however have occurred is that, once Bedell Cristin identified the problem and a potential solution, they should have explored that solution with Mourant Ozannes rather than simply then carrying out the approach they had determined to follow and only leaving it until provision of a further affidavit of discovery to explain what they had done. The approach of Bedell Cristin for the Plaintiffs is in breach of Practice Direction 17/08. This breach, however, does not require the exercise to be carried out again when I have found it was a reasonable approach. However, it may be relevant to the question of costs which I will deal with when this judgment is handed down.
73. In relation to the requests to re-run searches for the reasons advanced by Advocate Gardner set out above, I was not satisfied that any of the terms were relevant.
74. I was also not satisfied that a further affidavit was required given the explanation put forward by Mr Gardner to explain the affidavit of Ms Watters as recorded in this judgment.
75. In relation to Mr Willingsdorfer and Ms Beeler, the Defendants failed to satisfy me that it was appropriate to go behind the affidavit of Mr Steiger. The documents referred to by Advocate Alexander were all consistent with Mr Steiger's affidavit. I was not therefore satisfied that it was appropriate to carry out searches and that any other email accounts they maintained would contain relevant material. In addition, I was not satisfied it was reasonable or proportionate to do so.
76. In the request to apply additional search terms, again for the reasons advanced by Advocate Gardner, I was not satisfied that these were search terms that would be likely to produce relevant documents.
77. The issue in this case as set out in the February 2024 Judgment is what was agreed in respect of the sharing of profits. The Defendants failed to satisfy me that these additional search terms would be likely to produce any relevant documents. If I was wrong on that conclusion, to require the Plaintiffs to carry out yet another discovery exercise by applying additional search terms at this stage on the basis that something might appear was also oppressive and not proportionate.
78. Finally, in relation to discovery, I wish to repeat the observation set out at paragraph 53 of the February 2024 Judgment where I stated the following:
79. Those concerns apply equally to the present application brought by the Defendants and in that regard matters have not got better, but worse.
80. The Plaintiffs' discovery summons sought any attendance note in whatever form from BPE between 14 March 2017 and 30 September 2023 in relation to the sale of Selsdon. The attendance notes sought were linked to a number of specific telephone calls identified at paragraph 2(a) - 2(g) of the Plaintiffs' summons.
81. The second category of documents sought eleven categories of documents relating to Blestarde Holdings Limited.
82. In relation to BPE, this request followed on from paragraph 3 of the Act of Court dated 15 September 2024 where the Defendants were directed to make enquiries of BPE's solicitors "whether BPE are prepared to provide discovery of their attendance notes from inception until completion".
83. What was meant by attendance notes was explored at paragraph 57 of the February 2024 Judgment as follows:
84. The relevance of the issue was to understand the need for interposing a company between a sale by the Third Defendant and the ultimate purchaser which was a company known as Optivo.
85. Advocate Gardner referred to me a letter dated 17 May 2024 when Mourant Ozannes had asked BPE the following question, which led to the following answer:
"Please confirm the location of the attendance note for the telcon between BPE, Setfords and Mr Longia in relation to the "bigger picture" which occurred in and around 9 December 2020 (Email from you stating: "Further to my conversations with Stephen and Amar I attach contract. Stephen assures me the contact will be "turned" so please see wording in definition of Enhanced Planning Permission. Clearly the buyer could sell on a bit later and you would not get the Increased Uplift Payment. I realise that this is part of a bigger picture.")"
4. In the Response, Ms Corner states: "There is no such attendance note."
86. The process that had been adopted by BPE was set out in the seventh affidavit of Roxanna Elizabeth Lackschewitz-Martin sworn on 27 October 2023 at paragraph 12, where she stated as follows:
"12. In the resulting email exchange between Ms Corner and Advocate Alexander [9-11], it was established that:
12.1. BPE agreed to provide discovery of their attendance notes;
12.2. The data they had already provided to FTI several weeks beforehand contained a folder called "Attendance Notes";
12.3. This folder was the only repository of attendance notes from iInception to completion of the Selsdon property."
87. Advocate Gardner however complained that BPE had failed to clarify the proposed date of inception of their instructions and the proposed date of completion (see paragraphs 18 and 19 of Mourant's letter of 17 May 2024, page G1680 of CaseLines bundle).
88. Secondly, the only documents received were only dated between 23 November 2022 and 6 July 2023, i.e. documents that were created after the directions given in March 2022. There were no notes at all for the previous five years, although by reference to documents that had been disclosed from BPE they had been instructed from March 2017 (see CaseLines G1651).
89. At page J99, the Defendants had disclosed a new matter instruction form from BPE described as the "sale of 230 Addington Road, Selsdon, South Croydon, Surrey". This form was dated 12 February 2020, with sale contracts being produced in March 2020 and exchanged in January 2021. There were no notes of any conversations during that period.
90. In relation to the discovery from Praxis, Advocate Gardner firstly pointed out that there had been errors in the previous discovery process carried by Mourant Ozannes for the Defendants which required the process to be carried out again (see paragraphs 8 and 9 of the eighth affidavit of Ms Lackschewitz-Martin).
91. The fundamental problem however was described at section c of the eight affidavit of Ms Lackschewitz-Martin from paragraph 19 onwards. In paragraph 18, she explained that the search term used identified 13,244 potentially relevant documents. She also explained that "With family documents, this number increased to 103,669 documents". What was meant by family documents were the attachments to the 13,244 documents.
92. The strategy then adopted was to review the 13,244 documents (see paragraph 21.1 of Ms Lackschewitz-Martin's eighth affidavit). A review of these documents led for 4,698 documents being disclosed.
93. However, what did not occur was any review of the attachments to this set of documents. At paragraph 21.1 of her first affidavit, Ms Lackschewitz-Martin stated this:
"21.1. The base number of 13,244 documents would be reviewed in full. These documents were the only documents directly responsive to the search terms in the Agreed Protocol and, given the broad range of search terms agreed and date range spanning from 1 January 1991 to the present date, any relevant documents would be likely caught by this search."
94. At paragraph 35, she then stated this:
"35. Upon review of the current production set, should Bedell Cristin identify any attachments to emails that have not been disclosed and that are seemingly relevant, they should provide a complete list of the "document ID" metadata for those parent emails, together with the name of the corresponding attachment or attachments (the Attachment Documents), to Mourant by 5pm on 5 April 2024."
95. What this meant was that the 90,000 attachments had not been reviewed at all and the onus was left on Bedell Cristin to request any attachments and to review the same.
96. Advocate Gardner accepted that this analysis ended up with a request that was broader than the summons, but this failure to review attachments made it clear why the documents requested had not been provided.
97. Advocate Alexander in response firstly in relation to BPE took me through the relevant correspondence between his firm set out in emails dated 15 February 2024 from Advocate Alexander to Ms Nicky Corner of BPE and her reply of 18 April.
98. The relevant part of Advocate Alexander's email was as follows:
"4. Please provide confirmation that when BPE searched for attendance notes, this included all documents of that description including email searches, manuscript notes and formal word and/or pdf documents, rather than just documents entitled "Attendance Note";
.....
7. Please provide attendance notes for the following calls identified in the table at paragraph 1.10 of Bedell Cristin's letter for which no note has been provided: a. 24 November 2020; b. 31 November 2021; c. 24 May 2022; d. 2 February 2023; e. 11 April 2023."
99. The reply from BPE answered "confirmed" to request 4, and said in respect of request 7 there were no separate attendance notes, with the addition "the email of 11 April 2023 is in any event an internal email".
100. Advocate Alexander fairly accepted that he could not say that BPE had disclosed documents owned by BPE, as distinct from documents belonging to the Defendants by reference to the reference to an internal email.
101. In relation to the second request concerning documents held by Blestarde Holdings Limited, he contended that the approach taken in relation to looking at the base number of documents that were directly responsive was a proportionate response to take.
102. In relation to the Plaintiffs' summons, I applied the same legal principles as applied to the Defendants' summons referred to at paragraph 66 above.
103. I also ordered the Defendant, through Advocate Alexander, to request BPE to identify any documents not already disclosed whether in electronic or hard copy form which recorded a communication between BPE and any of the Defendants or persons on behalf of the Defendants which BPE hold, "whether owned by BPE or any of the Defendants in action 2018/203 and (b) to set out whether BPE shall be willing to produce any such documents and if not the reasons why they were not willing to do so".
104. This was because, for the reasons set out by Advocate Gardner, I was not satisfied that BPE had produced all documents recording any communication between BPE and any of the Defendants or individuals on behalf of the Defendants. The instruction of BPE was ultimately a transaction to sell property. In the experience of this Court in this jurisdiction is that lawyers engaged in property transactions record the instructions given in some form. As far as this Court is aware, the practice is no different in England and Wales. The order made therefore sought clarification as to whether BPE had disclosed everything in their possession or whether they had only disclosed documents belonging to the Defendants, as distinct from documents belonging to BPE which might cover internal documentation or file notes. In particular, I was surprised that there were no communications recorded as file notes or other documentation at all in respect of a significant transaction between the initial instruction and exchange of contracts.
105. In relation to the second part of the Plaintiffs' summons, it was clear for the reasons set out by Advocate Gardner that the attachments to 13,000 potentially responsive documents had not been looked at at all and the matter simply left to Bedell Cristin to raise. This was a failure to discharge discovery obligations. While I understand the problem that the Defendants and Mourant Ozannes faced because of the number of attachments that had been responsive to the search terms, the response of not looking at the attachments at all or taking any steps to try to address what would be a proportionate review meant that the Defendants had not discharged their discovery obligations.
106. While I have criticised Bedell Cristin in this judgment for not communicating the approach they took in respect of a similar problem, they did tackle that approach by applying exclusionary search terms and by reviewing the attachments separately to see whether they responded to the search terms approved in March 2022. By contrast, Mourant Ozannes did nothing to review the attachments.
107. While the request went beyond the summons issued by the Defendant, given the clear failure to review potentially relevant documents at all, I directed that Mourant Ozannes were required to review separately the 90,000 attachments to see whether they were relevant. Precisely how that task was carried out was a matter for the Defendants, Mourant Ozannes and any data services provider they were retaining. However, I indicated that the approach adopted by Bedell Cristin was one that was reasonable and, if Mourant Ozannes adopted a similar approach, that would appear to be reasonable. However, the precise way to approach the issue was left to Advocate Alexander. He was also directed to explain to Bedell Cristin the process he had followed. It followed that if the process led to relevant documents being produced, then a further affidavit of discovery would have to be produced. I gave Advocate Alexander until 13 September to carry out the review of this documentation.
108. In relation to the application to amend, this was not a late application to amend. It also followed on from observations that had been made by the Court inviting the Plaintiffs to clarify when they ceased to provide services. Advocate Alexander did not oppose this part of the amendments and they were therefore approved subject to minor clarificatory wording being required.
109. In relation to the concern that the amendments at paragraphs 38 and 60 of the draft Re Re Amended order of Justice that the novations alleged were to be inferred from conduct were inconsistent with the Plaintiffs having ceased to provide services as set out at paragraph 7 of the same pleading, Advocate Gardner contended this was a matter for trial, but it would be unfair for parties to deny agreements which they had adhered to for a number of years. He accepted that this might be a ground to plead estoppel.
110. I therefore gave Advocate Gardner seven days to consider whether he wished to plead any form of equitable relief in addition to the amendments sought and allowed him seven days to file any further amended pleading.
111. I then set a timetable for the filing of evidence in reply.
112. The remaining issue concerned directions. The only issue that required determination concerned expert evidence in the field of valuation. Previously the parties, prior to the trial that was adjourned in January 2021, had instructed a Mr Palos as a single joint expert.
113. Advocate Gardner contended that his clients had since lost confidence in Mr Palos. This was for the following reasons:
(i) The process of instructing him jointly with the Defendants had proved difficult;
(ii) The valuation Mr Palos provided dated 17 December 2020 was significantly below the price at which contracts had been negotiated since September 2018 and exchanged in January 2021;
(iii) Thirdly, Mr Palos failed to ask whether there were any relevant negotiations to sell the site.
114. Advocate Gardner also contended that there was no express power under the Jersey procedural rules to direct that evidence be given by a single joint expert.
115. The approach of the English Court was set out in Daniels v Walker [2000] 1 WLR 1382 but that did not apply in Jersey, and each party was ultimately free to retain its own expert.
116. In relation to this application, this was not opposed by Advocate Alexander. I also referred the parties to Morley v Reed [2015] JRC 050, where I had considered Daniels v Walker.
117. What Morley v Reed however ultimately focused on was preventing expert shopping. That issue did not directly arise in this case because the Plaintiffs were always free in principle to instruct their own expert.
118. I say in principle because in this case trial dates have not been re-fixed and there is still a significant amount of work to do for this case to be ready to be determined at a trial. Allowing therefore the Plaintiffs at this stage to adduce expert evidence from a single expert they had retained did not disrupt the timetable and did not cause any trial dates to be adjourned. It is therefore a matter for another day where a party who has agreed to a joint expert would be permitted to then instruct their own expert late in the day if the consequence is that a trial might otherwise have to be adjourned. In such a scenario, it is within the Court's case management powers , as a matter of discretion, to refuse such an application. That issue does not however arise in this case.
119. Accordingly, I granted the Plaintiffs the permission they were seeking. As a consequence, I also granted permission to the Defendants to rely on Mr Palos as their own expert or, alternatively, to also engage their own valuation expert if they wished to do so.
