Destruction of documents

Douglas and others v Hello! Limited and others ([2003] 1 All ER ChD)

On an application to strike out the defence on the grounds that the defendants had interfered with the course of justice and/or put the fairness of the trial in jeopardy by, inter alia, deliberately destroying or disposing of documents, including emails that had been deleted before proceedings commenced, there was a distinction to be drawn between those documents which were destroyed or disposed of before proceedings commenced and those which were destroyed or disposed of thereafter. With regard to the former category, it was established by the Court of Appeal for the State of Victoria in British American Tobacco Australia Services Ltd v Cowell that the criterion for the Court’s intervention of the type sought in this application was whether that destruction or disposal amounted to an attempt to pervert the course of justice. There being no English authority on the point, the Court applied that principle and held that there had been no attempt to pervert the course of justice in respect of those proceedings. In respect of documents destroyed or disposed of after the commencement of the proceedings, notwithstanding that the defendants’ conduct left a very great deal to be desired with regard to the veracity of their evidence and the adequacy of their disclosure, the Court was not persuaded that a fair trial was no longer possible or that the deficiencies in the conduct of the defence justified an order striking out the whole or any part of it.