Destruction of Documents before Proceedings Commence: What Is a Court to Do?

Article excerpt

[The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were highly likely, if not certain, to occur. The authors argue that the criminal test of attempting to pervert the course of justice (or contempt of court), as laid down in the recent case of BAT v Cowell, is not the appropriate test because it focuses on the lawfulness of the destruction rather than on the effect of the destruction on the other party 's ability to obtain a fair trial. The authors explain what the proper test should be--whether the destruction of documents has made a fair trial impossible--and identify the factors that should influence a trial judge's exercise of discretion in a case where documents have been destroyed.]



I   Introduction

II  The Relationship between Adjudication and Discovery
       A  The Essential Elements of Adjudication: Finding Facts and
          Making Decisions
       B  The 'First Principles' of Discovery
             1 Discovery in Equity
             2 Modern Discovery
       C  Adjudication, Discovery and the Pre-Proceedings Destruction
          of Documents
III How These Issues Arose in BAT v Cowell
       A Introduction
       B The Undisputed Facts in McCabe v BAT
             1 Anticipation of Litigation
             2 Destruction of Documents
       C Destruction of Documents when Litigation Is Anticipated: The
         Court of Appeal 'Test'
       D The Correct Question
       E The Court's Use of the Terms 'Obligation', 'Sanction' and
             1 The Court's Use of the Term 'Obligation'
             2 The Court's Use of the Term 'Sanction'
             3 The Court's Use of the Term 'Right'
IV  The Criminal Offences of Attempting to Pervert the Course of
    Justice and Contempt of Court
       A The Nature of the Offences
       B The Criminal Offence Is an Inappropriate Criterion for
         Intervention: Tendency, Not Effect
       C Plaintiff Should Not Be Required to Prove the Commission of a
         Criminal Offence
V   Pre-Proceedings Destruction and the Possibility of a Fair Trial
       A Introduction
       B The English Cases
       C Application of These Principles to Pre-Proceedings Destruction
         of Documents
VI  The Correct Question and the Correct Answer
       A The Relationship between Fairness and a Court's Inherent
       B Factors Influencing the Discretion to Intervene
       C Why Adverse Inferences Are Not Enough
VII Conclusion


Courts adjudicate disputes. The essential features of the adjudication process are determining the facts and applying the law to those facts. The aim of this judicial process in any given case is to do justice between the parties by finding the facts and resolving a specific dispute according to law. In order to discharge their fact-finding and decision-making functions effectively and fairly, courts need evidence. One of the principal ways in which this evidence is obtained in the civil litigation process is through the discovery of documents.

Discovery has a long history in common law systems, and the significance and centrality of the discovery process to the fact-finding and decision-making processes have long been recognised. The primary aim of discovery is to ensure that litigants disclose to each other all relevant, non-privileged documents, whether that disclosure helps or hurts their respective cases, so that they will know the case they have to meet and judges will have the evidence they need to do their job effectively. …