ANTHONY MARLTON v TEKTRONIX UK HOLDINGS LTD (2003)

SPECIFIC DISCLOSURE : INSPECTION OF COMPUTERS : EMAILS : ELECTRONIC MAIL : CPR PART 31 : CIVIL PROCEDURE RULES SI 1998/3132

Where a dispute between the parties centred on the receipt or non-receipt of certain emails, the claimant was ordered to disclose all material in his control that related to his relevant email address.

Defendant's ('D') application for specific disclosure and inspection of the claimant's computer. The claim concerned the sale by the claimant ('C') of the entire share capital of the target to D under an acquisition agreement of 18 April 2001, the consideration for which was US$18 million, US$850,000 of which was deferred. The net asset value of the target was warranted as being no less than £1,739,000. If the net asset value was found to be less than the warranted sum, D was entitled to recover the shortfall from the deferred consideration. By the agreement D could challenge the accounts by preparing draft completion accounts by 15 October 2001 and delivering these accounts to C.

D did not pay the deferred consideration maintaining that there was a shortfall in the net asset value and that it had delivered draft accounts by email to C on 12 October 2001 to two email addresses. C submitted that: (i) email was not one of the specified methods of delivery under the agreement and so delivery of the draft accounts by that method was not valid; (ii) an email addressed to one account had not been received; and (iii) one addressed to another account was not opened until 16 October. Accordingly C contended that D was deemed to have accepted the minimum asset value as warranted.

D sought an order for the inspection of the contents of the hard disks of C's computers, any backups that might be available and also any server over which C had power or control.

HELD: It seemed that C's disclosure so far was inadequate. Standard disclosure required a party to disclose documents upon which he relied together with documents adversely affecting his own case or that of the other party or documents supporting another party's case. Such documents included computer databases, per CPR PART 31. As the dispute between the parties centred on, inter alia, the date of receipt of certain emails, all documents that tended to show the date of receipt or non-receipt of the emails became potentially disclosable. That disclosure had not taken place. C should disclose all materials in his control, possession power and custody relating to his Belgium email address.

Order accordingly.

Martin Barkley instructed by Taylor Vinters for C.

Clare Stanley instructed by Geoffrey Leaver solicitors (Milton Keynes) for D.

Trevor Coward comments that today the obligation of disclosure of electronic documents is set out in Part 31 and the Practice Direction 31B. The compliment made by the Judge is testimony to the fact that a good out of London solicitor is capable of being innovative and obtaining an equivalent result for a substantially lower cost to that which larger firms of lawyers would charge. That is why clients instruct Geoffrey Leaver - we provide quality and innovative legal advice that would be expected from a London firm at a significantly lower cost.