07 October 2014

What can you do if you suspect that a party on the other side has fabricated electronic documents, including emails and invoices? This can happen when disputes arise and evidence begins to appear which does not match your knowledge of the actual events. In such cases you need to ask the court for permission to investigate the origins of such documents.

Part 25.1 (Interim Remedies) of the Civil Procedure Rules allows the Court to order an 'inspection of relevant property'. This is available for parties who suspect that their opponent is up to no good.

In a slightly unusual twist, in McLennan v Jones and another (2014), it was the Defendants who alleged that several of the Claimant's emails were forgeries, owing in part to a reference in one of the emails to a cyclone (Cyclone Gonu) which had, in actual fact, occurred 6 months after the date of the email. The Claimant instructed an IT expert to investigate the suspect emails held on its own devices, but the expert found no evidence of tampering. The Claimant subsequently sought to investigate the Defendants' laptop, but access to the device was refused.  

The Claimant initially requested a wide-ranging application for inspection involving making a forensic image of the laptop's hard drive. The Court however hinted that this would be unnecessarily intrusive and would likely be refused.  Instead it granted an order on a more limited basis. The Claimant's expert would be allowed, in the presence of the Defendants' own expert, to examine the hard drive, locate the four emails in question including related metadata (data about creation times etc), and make two exact copies for each party. The Claimant's expert would also be required to provide an undertaking of confidentiality, both to the Defendants and to the Court.

The resulting guidance issued by the Court for this type of situation falls squarely within a proportionate exercise of the power to order inspection. The legitimate factors which a party considering an application must keep in mind includes:

  • A proportionate scope of investigation, limited to what is reasonably necessary in the context of the case
  • Regard to likely contents of a device to exclude the possibility of disclosure of privileged or confidential and unrelated documents
  • Regard to the human rights of people whose information is on the device, and which is unrelated to the case.

In other words, if evidence of forgery emerges, the Court will allow a party to inspect or preserve documents which are directly linked to the suspect evidence, but will not allow a fishing expedition.

The author Thierry de Poerck is part of Burges Salmon's dispute resolution team lead by David Hall.

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David Hall

David Hall Partner

  • Dispute Resolution
  • Banking Disputes
  • Business Crime and Regulatory Investigations

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