Triumph Controls UK Ltd & Anor v Primus International Holding Co & Ors, Court of Appeal - Technology and Construction Court, February 07, 2018, [2018] EWHC 176 (TCC)

Resolution Date:February 07, 2018
Issuing Organization:Technology and Construction Court
Actores:Triumph Controls UK Ltd & Anor v Primus International Holding Co & Ors
 
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Case No: HT-2016-000104

Neutral Citation Number: [2018] EWHC 176 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice

Rolls Building, Fetter Lane, London, EC4A 1NL

Date: 7 February 2018

Before :

THE HON MR JUSTICE COULSON

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Between :

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Mr Rajesh Pillai and Mr Nathaniel Bird

(instructed by RPC) for the Claimants/Respondents

Mr Edward Pepperall QC and Ms Helen Gardiner

(instructed by Harrison Clark Rickerbys) for the Defendants/Applicants

Hearing date: 31 January 2018

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JudgmentThe Hon. Mr Justice Coulson :

  1. INTRODUCTION

  2. In these proceedings, the claimants claim some US$65 million against the defendants for breaches of warranty following the sale of the defendants' aerospace business to the claimants via a share capital purchase. It is said that the defendants failed to disclose various aspects of the business, including alleged operational failings at, and lack of accreditation of, their facility at Farnborough. The original trial date was adjourned as a result of the claimants' late application to re-amend the Particulars of Claim, and the trial is now due to take place for five weeks starting on 18 June 2018.

  3. By an application dated 19 December 2017, the defendants sought wide-ranging orders arising out of what they said were the fundamental deficiencies in the claimants' disclosure. On the face of it, the application required the claimants to re-do, from scratch, the search exercise that they had undertaken. That was an unrealistic stance and Mr Pepperall recognised that in his helpful skeleton argument.

  4. In consequence, the defendants sought two more focused orders from the court. The first was an order that the list of 860,000 folders and file paths which had been identified by the claimants on the Farnborough shared drive should be provided to the defendants so that they could see whether there were any folders or file paths which had not yet been - but should be - searched. The second was for an order that the claimants undertake a manual review of the balance of 220,000 documents (out of a total of 450,000) which had been identified as potentially disclosable following the keyword search but which, other than a very limited sampling exercise, had not been further searched.

  5. At the end of the hearing, in view of the proximity of the trial date and the overriding need for speed, I set out orally the conclusions noted at paragraphs 24 and 42 below, and gave brief reasons for my decision. I promised to provide a Judgment setting out those reasons in detail.

  6. Accordingly, I deal with the disputes between the parties in this way. I set out the background to the disclosure dispute in Section 2. I set out the relevant law in Section 3. Thereafter, at Sections 4 and 5, I deal respectively with the application in respect of the file paths, and the application in relation to the 220,000 documents. I am very grateful to counsel for their extremely helpful written and oral submissions.

  7. THE BACKGROUND

  8. Disclosure has been something of a running sore in this case. The claimants' Electronic Documents Questionnaire (``EDQ'') indicated that, following a keyword search, all the documents responsive to those searches would be ``manually reviewed''. There was no reference to a Computer Assisted Review (``CAR'').

  9. The parties agreed the keywords. Because of the large amount of potential documents that would have been turned up by the original keywords, those were reduced in number, again by agreement. This refined exercise produced a total of 450,000 responsive documents.

  10. On 8 July 2016, the claimants served their first list of documents. This was based on a review of over 200,000 documents. 12,476 documents were disclosed in that first list.

  11. On 29 July 2016, the claimants served a first supplemental list, disclosing a further 4,163 documents. The covering letter indicated that those had been ``manually reviewed''. This made a total of 16,500 disclosed documents.

  12. It has subsequently become apparent that, having reviewed a total of around 230,000 of the 450,000 documents by the end of July 2016, using manual searches aided by CAR, the claimants decided not to search the balance of 220,000 documents which had been de-prioritised for manual review by CAR. The claimants say that they sampled 1% of those documents using a CAR technique which revealed that only 0.38% of the remaining documents would be relevant. They therefore concluded that that was disproportionate and that no further searches were required. The extent to which that was an appropriate course to take is dealt with in Section 5. It was not at any time discussed with the defendants, let alone agreed with them.

  13. Since then, the claimants have produced 10 supplemental lists of documents, together with a separate disclosure exercise relating to valuation documents. Almost 3,000 additional documents have been disclosed as a result, making a total of 19,500 disclosed documents. The evidence suggests that about two thirds of these later documents, so around 2,000 documents, were responsive to the keywords which had been agreed in 2016. On the face of it, therefore, those 2,000 documents should have been disclosed originally.

  14. THE RELEVANT PRINCIPLES OF LAW

  15. The starting point for any consideration of...

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