Al-Sweady v Secretary of State for Defence: blame for e-Disclosure failures gets personal – and public

The Court of Appeal has castigated a Minister, the Treasury Solicitor, and a serving army officer by name, for disclosure failures in a judicial review application derived from the Iraq war. You do not need such an elevated cast of players nor so important a subject for such a public humiliation to be visited on you.

I suggested in one of my turn-of-the-year predictions that 2010 would see individuals, both from clients and from their lawyers, being named personally in judgments about failures to give disclosure properly. I had in mind the judgment in Earles v Barclays Bank Plc, and suggested that those charged with disclosure might care to consider the possibility not only that their firm’s name might appear in the same paragraph as the word “incompetent” but that they might have a walk-on part of their own. We have yet to see the judgment in Shoesmith v Ofsted & Ors, but it is reasonable to expect that some stronger word than “incompetence” will appear in relation to named individuals responsible for a disclosure exercise which not only failed to uncover seventeen very relevant drafts of a key report, but which included an instruction to delete all documents containing highly material keywords. It is unlikely, you would think, that a personal reputation could sink lower.

If you think that, take a look at the judgment in Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence [2009] EWHC 2387 (Admin) (02 October 2009) and at what is said about the principal witness on disclosure matters for the Ministry of Defence:

Accordingly, if [insert your own name here] continues to be put forward as a principal or even a significant witness in judicial review proceedings or if he is in any way responsible for disclosure, it is our view that any court seized of those proceedings should approach his evidence with the greatest caution.

I would work quite hard to ensure that the name in that sentence was not mine.

Picture the e-Disclosure scene as a battlefield – perhaps one of the Normandy beaches. For the soldiers running up the beach, substitute the lawyers and others with responsibility for identifying and producing the documents required by the rules, you amongst them. Every so often, a shell or a bullet carries off one of your number, and with each casualty you feel more at risk. First to fall is the solicitor in Hedrich v Standard Bank London [2008] EWCA Civ 905 (30 July 2008), whose narrow escape in the Court of Appeal from a wasted costs order was seen by many as a close shave. The defendants’ solicitors in Earles v Barclays Bank Plc did not, I suspect, imagine that an everyday case about banking instructions would earn them a place in e-Disclosure’s Hall of Fame – or, at least, in a footnote in the new edition of the White Book, where no one is going to miss it. There’s a bullet for the solicitors for the successful claimants in Vector Investments v Williams [2009] EWHC 3601 (TCC) (05 November 2009), losing £20,000 in costs because of the manner in which disclosure was given. There goes the Treasury Solicitor in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009), saved from the awkwardness of turning up at trial with no electronic documents by Master Whitaker’s astute intervention at the case management stage. Here is the Treasury Solicitor again, copping another bullet in the Ofsted case; we will have to wait and see whether it is the lawyer or his client who comes off worst for the disclosure failures in that case, which will have cost the parties (that is, us since we fund the costly paper-shufflers of Ofsted) a fortune in wasted fees and indemnity costs orders. And here goes the Treasury Solicitor again in Al-Sweady v Secretary of State for Defence [2009] EWHC 2387 (Admin) (02 October 2009), this time called personally to the court to explain disclosure failures and, if this judgment is anything to go by, not doing it terribly accurately.

Well, you may say, what is that to do with me? I am neither a small High Street solicitor like the one in Hedrich, nor am I a civil servant with a political master to please and competition between my duties to the court and my attachment to my pension. Why am I at risk of public humiliation for inadequate disclosure? I don’t have cases involving crooks (as in Hedrich) or Ed Balls.

I am not sure that any of this offers much comfort, really, as the bullets fly and the shells rain down on the beach. If the Treasury Solicitor turns up more often than he might like in these stories, it is more because of the nature of his client and his work than because of anything else, and a judgment involving high-profile matters such as Shoesmith’s claim or (as in the Al-Sweady case) the war in Iraq, are more likely to be reported than many others. The rules and duties, however, are the same for everyone. The facts of these cases may be eye-catching, but the underlying defects are of a kind which is far from uncommon. You could be the next to find your name in lights. The next bullet, as they say, could have your name on it.

The handling of disclosure in the Al-Sweady case seems to have appalled the Court of Appeal, and not merely because of the high duty which falls on the defendants in judicial review proceedings (on both parties, indeed, but particularly on the defendants, who tend to be both well-funded and the holder of most of the documents), especially where, as here, the facts arose in a war zone.

Put as briefly as possible the facts concern the aftermath of a battle in Iraq. A number of Iraqis, dead and alive, were taken back to base for identification. It was claimed that one of the dead Iraqis was not in that condition when taken into the base. Very different considerations, including the application of the European Convention on Human Rights, apply if the man died on the battlefield or in the base.

We get the flavour of the disclosure disputes which raged between the parties from this sentence in paragraph 8 of the judgment (the RMP are the Royal Military Police):

We were also so concerned about the lamentable approach of the RMP to disclosure that we invited the Treasury Solicitor and the Provost Marshal (who is in charge of the RMP), to come to court on 15 May 2009 to assist in ensuring that proper disclosure would take place. They duly attended and we were grateful for their help, but we will return in paragraph 29 onwards to explain the subsequent problems with the disclosure, which ought to have been given, but which unfortunately was not given, by the Secretary of State.

Does anyone know a precedent for this – the Treasury Solicitor, no less, hauled before the Court of Appeal, no less, to explain a disclosure failure?

The judgment is short, and I will leave you to read it. You will see, amongst other things, that an interim order for costs was made against the Secretary of State assessed at £1 million against an itemised bill in excess of £2 million; that numerous applications were made for disclosure, that the Secretary of State “actually gave some disclosure which the court was then wrongly assured was adequate”; that the Treasury Solicitor said (in respect of one particular head of disclosure) that the department had “made a reasonable search… and is not aware of the existence of any other logs beyond those which have already been disclosed to you”; that the claimants felt unable to go behind that assertion notwithstanding the absence of any e-mails; that it was not suggested that the searches were qualified by the requirement of proportionality; but that the story suddenly changed:

Much to our surprise in the light of the Secretary of State’s previous stance, it was then asserted for the first time that:

“the sheer volume of the material… together with the technical difficulties in framing meaningful search parameters, means that it would be impractical and disproportionate to conduct broad-based searches of the exchange servers themselves, and that to do so would be disproportionate”.

There is more in this vein, leading to the court’s statement quoted above about the witness, which is unmatched in its seriousness in any case which I have read apart from fraud cases. And don’t you just love the straight face with which the bureaucrats assert in one breath that they have no documents at all and, in the next, claim to have so many that they cannot handle them?

The peculiar facts of the case give it a value in terms of drawing attention to the duties of parties and their lawyers when giving disclosure. Its primary elements – senior people hauled before the court to explain themselves, wildly fluctuating estimates of document populations, the appearance (at the least) of evasiveness when candour is required, and indemnity costs orders – do not need the high-profile facts of this case to become a reality for an ordinary firm conducting ordinary litigation.

One sometimes overlooks, when starting a disclosure exercise, that the disclosure statement will have to be signed at the end of it. The proposed ESI Questionnaire includes a Statement of Truth. As these cases multiply, methinks that people will start planning ahead for the day when their pen is poised over the space on Form N265.

My thanks to Laurence Eastham, Editor of Computers & Law, who drew my attention to this case.

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