Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors

Factual and Procedural Background

This judgment concerns an application by the Claimants pursuant to CPR Rule 31.12 for an order requiring the Defendants to give specific disclosure of certain classes of documents. The application has three parts: (1) an order for the Defendants to restore relevant back-up tapes to search for e-mail accounts of certain former employees; (2) an order for the Defendants to carry out further electronic searches using additional key words on already identified and any newly identified electronic documents; and (3) an order relating to documents containing financial and operational data relevant to quantum. During the hearing, the Court ordered a split trial, with issues of quantum to be tried after liability and causation, resulting in the third part of the application being withdrawn from consideration.

The Claimants are mobile phone companies operating in seven Caribbean jurisdictions. The Defendants were the incumbent telephone operators in those jurisdictions, operating under exclusive licences until market liberalisation between 2001/2002 and 2006. The Claimants allege that the Defendants deliberately delayed interconnection with their networks in breach of statutory duties, causing loss and damage. The Claimants further allege a conspiracy directed by certain Defendants based in London to injure them by unlawful means.

The Defendants deny liability and the existence of any wrongdoing. They also contend that the Claimants’ pleadings, particularly regarding conspiracy, are inadequate and that the Claimants’ prospects of success are poor. The Defendants have already provided standard disclosure, including electronic documents, but have not restored back-up tapes or agreed key word searches with the Claimants. The Claimants seek specific disclosure orders to extend the scope of electronic searches and restore back-up tapes relating to seven former employees.

The Court has reviewed the extensive pleadings and disclosure history, including the volume and nature of electronic documents disclosed and the processes used for searching and de-duplication. The Court also considered the relevant CPR provisions and Practice Directions on disclosure and electronic disclosure, as well as the background provided by the Cresswell Report and comparative US jurisprudence.

Legal Issues Presented

1. Whether the Defendants have carried out a reasonable search for electronic documents in compliance with their disclosure obligations under CPR Part 31 and the Practice Direction.
2. Whether the Court should order the Defendants to restore back-up tapes to enable the search of e-mail accounts of specified former employees.
3. Whether the Defendants should be ordered to carry out further electronic searches using additional key words proposed by the Claimants.
4. Whether a split trial should be ordered to separate issues of liability and causation from issues of quantum.

Arguments of the Parties

Claimants' Arguments

• The Defendants’ initial electronic searches were inadequate, particularly in failing to restore back-up tapes that may contain relevant e-mails of seven former employees.
• The Claimants emphasize the importance of disclosure in conspiracy claims, noting conspirators tend to conceal evidence, thus requiring thorough disclosure and searches.
• The Claimants contend that additional key words beyond those used by the Defendants are necessary to identify relevant documents, including words related to delay and interim agreements.
• The Claimants support a split trial to focus first on liability and causation, deferring quantum issues to a later stage, which would avoid unnecessary disclosure disputes regarding quantum at this stage.

Defendants' Arguments

• The Defendants submit that the Claimants’ pleadings are manifestly inadequate and the claim has poor prospects of success, suggesting the disclosure application is a fishing expedition.
• The Defendants argue that restoring back-up tapes is disproportionate in cost and effort, and unlikely to yield significant new relevant documents given the volume of documents already disclosed.
• They contend that many relevant e-mails would already have been captured through searches of current servers and e-mail accounts of other individuals because e-mails are commonly sent to multiple recipients.
• The Defendants maintain that the selection of key words for electronic searches is a matter for the solicitor in charge, and that their searches were reasonable and proportionate.
• The Defendants oppose a split trial, arguing it may cause multiple trials and delay, and that the Claimants did not press for a split trial earlier in the proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully considered the extensive factual and procedural background, the voluminous pleadings, and the history of disclosure between the parties. It noted the substantial efforts and costs already incurred by the Defendants in their electronic disclosure, including the use of positive key word searches, de-duplication, and manual review of over 197,000 documents, resulting in disclosure of over 5,000 documents.

However, the Court found that the Defendants had not conducted a reasonable search in relation to the back-up tapes containing the e-mail accounts of seven former employees. Despite the Defendants’ submissions about the difficulty, cost, and limited benefit of restoring these tapes, the Court was not persuaded that these factors justified abandoning the search. The Court emphasized the importance of disclosure in conspiracy claims and acknowledged that relevant documents might be concealed in such cases.

The Court ordered the parties to meet promptly to discuss a practical and cooperative approach to restoring and searching the back-up tapes, with regular progress reports to be provided. The Court also adjusted the relevant search period for one individual to align with others.

Regarding key word searches, the Court analyzed the proposed additional key words and balanced the proportionality of including each. It rejected some key words on grounds of likely disproportionate burden relative to benefit, such as "Nortel," "legacy," and various technical terms. The Court accepted the inclusion of key words closely related to the core allegations, including "interim agreement," "interim rate," "liberalize" (with American spelling), and words related to delay ("delay," "frustra*," "impede," "obstruct") but excluded "stall" and "launch" as unnecessary.

The Court recognized that the Defendants acted unilaterally in the initial key word selection without attempting to agree with the Claimants, contrary to the Practice Direction, thereby exposing themselves to the risk of a further disclosure order. The Court rejected the Defendants’ submission that the reasonableness of searches should be reviewed only on a narrow standard akin to judicial review or appellate discretion. Instead, the Court held that it must form its own view on what constitutes a reasonable search, considering all relevant factors and with the benefit of hindsight.

The Court ordered the Defendants to carry out further searches of the e-mail accounts of sixteen identified individuals using the additional key words, applying procedures to avoid duplicating earlier searches. The Court acknowledged the Defendants’ concerns about burden but concluded that the additional searches were proportionate and necessary.

On the question of a split trial, the Court considered the parties’ submissions and the history of earlier interlocutory applications. Despite some hesitation due to the parties’ prior positions and earlier rulings, the Court was persuaded that a split trial separating liability and causation from quantum issues was in the interests of justice and efficiency. The order for a split trial also obviated the need to decide disclosure relating to quantum at this stage.

Holding and Implications

The Court ordered:

• The parties’ solicitors are to meet promptly to agree a practical approach to restoring and searching the back-up tapes for the e-mail accounts of seven specified former employees, with regular progress updates and cooperation required.
• The Defendants must carry out further electronic searches of the e-mail accounts of sixteen identified individuals using an expanded list of key words including "interim agreement," "interim rate," "liberalize," "liberalization," and words related to delay ("delay," "frustra*," "impede," "obstruct").
• The search period for one individual was adjusted for consistency.
• A split trial was ordered to separate issues of liability and causation from issues of quantum, with disclosure relating to quantum deferred to the second trial.

Implications: This decision requires the Defendants to undertake additional disclosure steps, increasing the scope and cost of disclosure. The order clarifies that the Court exercises an independent judgment on what constitutes a reasonable search, beyond deference to solicitors’ decisions, especially where unilateral actions have led to disputes. The split trial order aims to streamline proceedings by focusing initial trial phases on liability and causation, deferring complex quantum issues. No new legal precedent was established beyond the application of existing CPR rules and Practice Directions to the specific facts.