Discovery

[2025]JRC051

Royal Court

(Samedi)

19 February 2025

IN THE MATTER OF THE REPRESENTATION OF BOS TRUSTEE LIMITED

AND IN THE MATTER OF THE Q TRUST

AND IN THE MATTER OF ARTICLES 51 AND 53 OF THE TRUSTS (JERSEY) LAW 1984, AS AMENDED

Advocate R. Spencer-Tucker for the Representor.

Advocate S. J. Alexander for the First Respondent.

Advocate J. C. Turnbull for the Second, Third and Fourth Respondents.

ex tempore judgment

the deputy bailiff:

1.        The summons in this case was issued on 3 December 2024 returnable today, 19 February 2025, seeking various relief against the First Respondent on the grounds that her discovery was deficient and that she is in breach of her discovery obligations.  Discovery was first ordered in these proceedings as long ago as 8 June 2023.  These proceedings were stayed by consent on 11 June 2024 save for the purpose of the parties complying with their discovery obligations until 7 days after the date upon which the parties have exchanged witness statements of fact in the proceedings issued by the Second Respondent and another against the Representor by way of Order of Justice – what has been referred to as the Paraphernal Assets Claim.  The background to these proceedings and the Paraphernal Assets Claim is set out in previous judgments of the Court.

2.        Various extensions were sought and ordered in relation to discovery in this case, with the terms of a proposed discovery protocol ultimately determined by the court on 15 December 2023, the parties thereafter consenting to an extension for the time limit for exchange of lists of documents to the 22 March 2024 and thereafter a further extension to 5 April 2024.

3.        The Second to Fourth Respondents and the Trustee gave disclosure on 22 March 2024 and the First Respondent served her affidavit of discovery on 5 April 2024, shortly before the parties agreed to the stay of these proceedings, subject to completion of their discovery obligations.

4.        On 12 July 2024, Walkers on behalf of the Second to Fourth Respondents wrote to Mourant, acting on behalf of the First Respondent, in respect of alleged deficiencies in the First Respondent’s discovery obligations.  These alleged deficiencies were reasonably wide-ranging but do not need to be set out for the purpose of this judgment.  Some of the matters of concern were addressed in a letter from Mourant dated 23 September 2024 and the majority of the other issues were dealt with by an affidavit sworn by the First Respondent as recently as 13 February 2025.  Counsel for the First Respondent accepts that the late service of this affidavit was “extremely unhelpful” to the Court and the other parties.

5.        The one matter which remains outstanding is the fact that the letter of 12 July 2024 from Walkers to Mourant indicated that it had been noted that the disclosure identified five email accounts that appeared to belong to the First Respondent which had not been reviewed for the purpose of disclosure.

6.        There was no immediate response to the letter of 12 July 2024 and Walkers wrote chasing correspondence on 3 and 16 September 2024.

7.        The Mourant response of 23 September 2024 did address some of the concerns expressed by Walkers on behalf of the Second to Fourth Respondents in their letter of 12 July, but in fact the position in relation to email accounts attributable to the First Respondent was worse than had originally been thought.  The letter from Mourant explained that “several additional email accounts belonging to our client had been uncovered.  It is accepted that the same ought to have been included in our client’s discovery protocol…”.

8.        It was said that this was unintentional and a consequence of the First Respondent’s age, and her limited understanding of technology and reliance upon friends and personal assistants.  An additional 10 email accounts were listed, making 14 in all.  The letter went on to say that the First Respondent had not used several of the email accounts for many years and could not therefore recall the passwords required to gain access and that Mourant were “liaising with our eDiscovery team with a view to securing access to the above accounts where possible”.

9.        As I have said, the balance of the matters referred to in the Walkers letter of 12 July 2024 have now been dealt with, and some of those matters were only dealt with in an affidavit sworn on 13 February some 7 months after they were raised.  Such a delay is unacceptable.  In fact, there are now 15 outstanding email accounts attributable to the First Respondent, as another was identified as recently as 20 January 2025.

10.     It almost goes without saying that compliance with the discovery obligations is important.  In this case as in many if not the majority of cases that come before the Court, contemporaneous records are likely to be of more significance and given greater weight than the oral recollection of events that took place many years ago.  In this case, many of the key events said to be relevant to the mental health of the Settlor took place in the period commencing 2010 when it is said that the Settlor began to experience periods of ill health affecting his capacity.

11.     In her affidavit sworn on 13 February, the First Respondent says that her emails are managed for her by her assistants, for the most part by M.  M operates email accounts for the First Respondent in the First Respondent’s name, she says.  The First Respondent says that she finds it “difficult and cumbersome to communicate via email, and I am in the fortunate position to have people to help me with such things”.  The First Respondent said that at the time of making discovery last year that she did not know or did not recall that these additional email accounts existed apart from two of them which she was aware of but did not draw to the attention of Mourant as she did not believe that they would contain any documents that could possibly be relevant.  One she says related to a hairdressing business which she used to part-own and has not been operational for some 8 years.

12.     The affidavit goes on to say that M had now obtained access to 5 of the additional accounts and the First Respondent says that data from those accounts “is being extracted” by “Complete Discovery Source”.  The First Respondent goes on to say that she “cannot say with certainty what each of the additional email accounts were used for” but she does not believe that any will contain documents or correspondence relevant to the proceedings, in particular to the health of the Settlor.  She says that the failure to make this disclosure was an “innocent oversight”.

13.     The affidavit sworn by Ms Brennan of Mourant on behalf of the First Respondent makes unhappy reading for the First Respondent, as it reveals significant delays on her part.  Ms Brennan’s affidavit was also not sworn until 13 February – last week.  Paragraph 46 of the affidavit reveals that the eDiscovery provider had to write to M on several occasions in October and November and it was not until 20 January 2025 that M provided passwords for 3 of the email accounts and revealed the existence of the 15^th email account for which she had also recovered the password.

14.     The eDiscovery provider extracted 31 emails from the first email account which has been reviewed.  Twenty-six were not relevant and 5 were relevant but privileged and therefore non-disclosable.  As to the second of the 5 email accounts which can be accessed, there were 23,645 documents which responded to the agreed search terms.  Of those, only approximately 3,500 have been reviewed so far and none have been identified as relevant.  It has been said it will take 2 to 3 weeks to complete the review.

15.     The eDiscovery platform/advisors are unable to access the three remaining accounts which are prima facie accessible and therefore this task has been passed by eDiscovery to Complete Discovery Source.  Ms Brennan also says “I understand that this extraction process is ongoing” but it is not, as Advocate Alexander told us that the First Respondent has not yet signed the Letter of Engagement to Complete Discover Source.  This process has not yet begun and we do not know how much data, if any, will be revealed by the extraction process and how long such data will take to review.

16.     In view of the fact that much of Ms Brennan’s affidavit in relation to the issue of discovery is hearsay, the Second to Fourth Respondents make a reasonable request that someone with first-hand knowledge of the process needs to confirm, as we are told by Ms Brennan in her affidavit, that of the remaining ten email address accounts, four (see paragraph 44 of her affidavit) do not exist or no longer exist and six (see paragraph 53 of her affidavit) cannot be accessed.

17.     It was argued on behalf of the First Respondent that it was not necessary for the Second to Fourth Respondents to have issued this summons.  I do not agree.  Advocate Alexander said on behalf of the First Respondent that his client’s discovery had been “deficient”.  He said that she had made progress although accepted that progress was “slow”.

18.     It was argued on behalf of the Second to Fourth Respondents that the reality is that material still remains unreviewed and it was not possible for this issue to be simply dealt with in correspondence as the late disclosure of affidavit evidence on behalf of the First Respondent tends to prove.

19.     In my view, it was appropriate and necessary for this summons to be issued, and for the relief within it to be sought.  It is not appropriate for litigation to be approached in the lackadaisical way that the First Respondent appears to have approached the matter of discovery in this case.

20.     Noting that the First Respondent has agreed to complete the review of the email account where the approximately 23,000 emails were identified and to instruct Complete Discovery Source to extract data from the other three accounts, I order:

(i)        that the First Respondent instruct Complete Discovery Source within 7 days to extract data from the three remaining email accounts – to be clear that means she must instruct them within 7 days not that they must carry out the task within 7 days.

(ii)       that eDiscovery provide and file an affidavit within 14 days confirming and explaining how they concluded that the four email accounts referred to a paragraph 44 of Ms Brennan’s affidavit do not exist or no longer exist and that the six email accounts referred to at paragraph 53 of her affidavit are no longer accessible; and

(iii)      that affidavits be sworn, including by the First Respondent, within three weeks of today in relation to the data, whether or not it is relevant, extracted from the second email account – the one referred to at paragraph 64 of Ms Brennan’s affidavit.

(iv)     It will also be necessary for the Court and the parties to be provided with a report supported by affidavit in relation to the work done by Complete Discovery Source as to the extraction of data from the remaining email account and that must be done by no later than the end of March 2025.

21.     I am invited by counsel for the Second to Fourth Respondents to make an unless order.  I do not think it is appropriate to do so at this stage but any further failures in respect of discovery committed by the First Respondent will likely result in such an order being considered if not made.

22.     Finally, it is suggested that I should make an order for indemnity costs against the First Respondent.  I have considered whether or not it is appropriate to make such order and on balance I have decided that the order I should make is that she should pay the costs of an incidental to this summons of both the Trustee and the Second to Fourth Respondents on the standard basis to be taxed if not agreed.  I have in mind that they should be assessed and paid as soon as possible.

23.     I order the Second to Fourth Respondents (and the Trustee, if it wishes) to make the application for interim payment and/or summary assessment of costs in writing within 14 days, the First Respondent to reply within 14 days and I will then determine the matter on the papers.