Disclosure – failure to preserve documents and amendments of case

In the case of Eurasian Natural Resources Corporation Limited ("ENRC") v (1) Dechert LLP (2) David Neil Gerrard (3) The Director of the Serious Fraud Office [2025] EWCA Civ 1307,  ENRC appealed the High Court’s refusal to amend its claims for loss against the defendants on the basis that ENRC failed to take steps to preserve documents of its subsidiaries when litigation was in prospect. The High Court found that the risk of non-available documents would seriously prejudice the ability of the defendants to challenge the amendments, and that this outweighed the prejudice to ENRC in losing part of its loss claim.

On appeal, the Court held that the judge erred in prioritising an uncertain and unquantified risk of injustice to the defendants as outweighing the certain and substantial injustice to ENRC. The proper approach was to allow the amendment and keep under review, if necessary, whether any subsequent failure to provide disclosure of the subsidiaries’ documents would materially affect the fairness of the trial. Put another way, a failure to put in place a litigation hold does not in itself cause injustice (to the other party) unless and until it is established that disclosable documents have not been preserved, with prejudicial effects.

The Court had to strike a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party if the amendment is permitted. In this case, the Court emphasised that a failure to impose a litigation hold does not itself cause injustice unless and until it is established that disclosable documents have not been preserved with prejudicial effects. 

For more information about the law, technology and practice of disclosure, contact Tom Whittaker or David Hine. This article was written by Christina Evered and Laura McCann.