First Rate FX Ltd v Trading By Telephone Ltd & Ors [2014] EWHC 1838 (QB)

[2014] EWHC 1838 (QB)Case No TLQ/14/0309
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of JusticeDate Wednesday, 16 th April 2014
Strand
London WC2A 2LL
Before
HIS HONOUR JUDGE SEYMOUR QC(Sitting as a Judge of the High Court)
Between
FIRST RATE FX LTDRespondentTRADING BY TELEPHONE LTD & ORSApplicant
Digital Transcript of Wordwave International Ltd (a Merrill Corporation Company)8th Floor, 165 Fleet Street, London, EC4A 2DYTel No: 020 7421 4036  Fax No: 020 7404 1424Web: www.merrillcorp.com/mls Email: courtcontracts@merrillcorp.com(Official Shorthand Writers to the Court)
MR A SOLOMON and MR N GOODFELLOW (instructed by Brabners) appeared for ClaimantMR C CHALLENGER (instructed by James Chan & Co) appeared for Second DefendantThe Defendants, MR OLIVER DAVIS-GARDNER, MR DANIEL CRISP, MR SCOTT GUNN, MR BOBBY WARD, and MR BILLY MARTIN appeared in person for in person
Judgment

JUDGE SEYMOUR:

[1]This action has a considerable history in which I have previously been involved. In particular, there was a hearing over three days at the beginning of March of this year. The claimant, First Rate FX Limited, carries on business as a provider of foreign exchange services. It appears that the second defendant carries on a similar business. The assertion on behalf of the various defendants in this action is that the first defendant, a company called Trading By Telephone Limited, has been engaged by the second defendant, which is called Opt FX Limited, to cold callpotential purchasers of foreign exchange services. The fourth, fifth, seventh, eighth and ninth defendants are individuals who are employed by the first defendant. They are respectively Mr Scott Gunn, Mr Oliver Davis-Gardner, Mr Billy Martin, Mr Cameron Perry Peter Hassan and Mr Louis Lavers. The third defendant, Mr Daniel Crisp, was formerly employed by the claimant, but he and the claimant agreed upon a parting of the ways in September 2013 and since that point, as I understand it, Mr Crisp has been unemployed and has been spending most of his time in the United Arab Emirates.[2]The sixth defendant, Mr Bobby Ward, was again previously an employee of the claimant, but he left the employment of the claimant in April of last year. He, like the other individual defendants, who were all previously employees of the claimant, were employed on terms which included restrictive covenants limiting their ability to engage in the provision of foreign exchange services for a period after the termination of their employment. In the case of Mr Ward, the period was six months. There was some evidence before me on the last occasion that Mr Ward had approached one or two companies which had previously been customers of the claimant, but that was in December of last year, after the termination of the period of six months during which he was prohibited from making contact with former clients of the claimant.[3]The outcome, so far as presently material, of the hearings before me at the beginning of March was that I granted certain injunctions and gave some directions for a speedy trial. Those directions are, to an extent, material to the application which is now before me. At paragraph 5 of my order I directed that there be a speedy trial of the claim. I directed, amongst other things, (paragraph 10):
“The defendants shall serve and file their defences by 4pm on Friday 21 March 2014.”
At paragraph 12 of my order I directed that the parties give standard disclosure by list by 4pm on Friday 4 April 2014. At paragraph 13 of my order I directed that inspection shall take place at the same time that standard disclosure is given by the parties, providing to each other copies of the relevant documents other than pleadings, applications, orders and inter-solicitor correspondence or documents already exhibited to statements or affidavits in these proceedings.[4]At paragraph 14 I gave directions for service of witness statements to take place by 4pm tomorrow, 17 April. By the same date, at paragraph 15 of my order, “the claimant is to serve an updated schedule of loss”, and at paragraph 17 I directed that the claim be set down for the trial to take place in London in a three day window commencing on 29 April 2014 with a time estimate of ten to fifteen days.[5]A number of things have happened, or failed to happen, since 5March, the last day of the hearing before me and the date of the order which I made, which are relevant to the application now before me. This application comes on for hearing on the last day of this term. The first day of next term is the first day of the window in which the trial begins, 29 April. The first thing that I am invited to do is to make an order pursuant to CPR Part 23.7(4) that sufficient notice has been given to each of the defendants and that the application should be heard. The application was issued on 14 April, on Monday, and consequently the hearing before me has taken place with less than the ordinarily requisite notice. However, Mr Colin Challenger has appeared before me instructed on behalf of the second defendant, and of the other parties Mr Crisp, Mr Gunn, Mr Davis-Gardner, Mr Ward and Mr Martin have appeared in person before me. Mr Davis-Gardner has appeared on behalf of Trading By Telephone Limited, the first defendant, so everyone other than the eighth defendant and the ninth defendant has actually appeared in front of me, but I have received letters from the eighth defendant and the ninth defendant authorising, on the face of it, Mr Davis-Gardner and/or Mr Gunn to represent them at the hearing. So one way or another all of the parties to this litigation have appeared before me or been represented formally or informally.[6]As will be obvious from today being the last day of this term and the commencement of the trial window being the first day of next term, this hearing had to take place today, and consequently I do make the order which I am invited to make, that sufficient notice has been given to each of the defendants and that the application should be heard.[7]Before I come to the substance of the other orders that I am invited to make, it is, I think, material for me to notice that when the matter was last before me the first defendant, the fourth defendant, the fifth defendant, the seventh defendant, the eighth defendant and the ninth defendant were all represented by Mishcon de Reya LLP and they were conveniently referred to in my judgment of 5 March as the “Mishcon defendants”. Mr Crisp at that time was separately represented by solicitors and counsel, but he subsequently also instructed Mishcon de Reya LLP to act on his behalf, and so there came a time when Mr Crisp was one of the Mishcon defendants, albeit not a Mishcon defendant at the time of my judgment on 5 March.[8]The way in which Mishcon de Reya LLP grappled with the need to give disclosure was in the first instance -- I think “in the first instance” may be a little unfair, but certainly it was the position by the beginning of April -- to seek an extension of time for service of the lists of documents of each of the defendants who it represented. Initially consent was sought from Brabners LLP, the solicitors acting on behalf of the claimant, to an extension of time of seven days, but that request fell upon deaf ears. Consequently, an application was made without notice to Master Eastman, sitting as the Practice Master, on 4 April on behalf of, if I can put it like this, the original Mishcon defendants and Mr Crisp, seeking an order, which the learned Master granted, that time for the parties to give standard disclosure by list be extended to 4pm on 11 April 2014 and inspection shall take place on the same date.[9]The Master made an order about witness statements which I need not be concerned with for the present purposes, but he did provide at paragraph 3 of his order that the claimant may apply to vary or set aside this order within seven days after service. That is absolutely what the claimant did. The application was made to Wilkie J on 7 April 2014. On that occasion the claimant was represented by Mr Adam Solomon, who has appeared throughout with Mr Goodfellow on behalf of the claimant, but informal notice was given to the original Mishcon defendants and Mr Crisp. The solicitor on behalf of those parties also appeared before Wilkie J.[10]On that occasion Wilkie J made these orders:
“1. The order of Master Eastman dated 14 April 2014 be set aside. 2. The Mishcon defendants [by which Wilkie J meant the original Mishcon defendants and Mr Crisp] do comply forthwith with their obligations for disclosure and inspection. 3. Unless the Mishcon defendants do provide disclosure as required by standard disclosure by 4pm on 9 April 2014 the defences of the Mishcon defendants do stand struck out. 4. Unless the Mishcon defendants do provide inspection by 4pm 11 April 2014 the defences of the Mishcon defendants do stand struck out.”
Then there was a provision about costs and a provision permitting the defendants to apply to vary or set aside the order.[11]Following the order of Wilkie J disclosure lists were prepared on behalf of each of the original Mishcon defendants and Mr Crisp. That is to say, a separate list for each defendant was prepared. Those separate lists were served shortly before 4pm on the afternoon of 9 April. The documents listed in those respective disclosure lists were copied and produced for inspection shortly before 4pm on 11 April 2014. Before me the position adopted on behalf of the claimant was that the disclosure which had been given was inadequate and consequently I am invited, at paragraph 2 of the draft order which has been put before me, to order that the defences of the Mishcon defendants, again here including Mr Crisp, have been struck out pursuant to the unless order of Wilkie J dated 7 April 2014. I think possibly as an alternative to an order in those terms, the draft order provides at paragraph 4:
“That the Mishcon defendants do provide specific disclosure and inspection in accordance with the items set out in the claimant’s email dated 10 April 2014 timed at 16.21 by 4pm on 17 April 2014.”
[12]The position so far as the second defendant is concerned is that disclosure was given by list and inspection was provided in accordance, pretty much, with the directions which I gave on 5 March. I say “pretty much”. As I understand it, because of a requirement on the part of the claimant’s solicitors that physical copies of documents be delivered to their offices rather than copies be sent electronically, there was a delay of some hours in the provision of the actual copies. But no point was taken before me in relation to that. What was said before me in relation to the second defendant was that the list provided was inadequate and consequently, at paragraph 3 of the draft order before me, I am invited to make this[13]The position of the sixth defendant, Mr Bobby Ward, before me has differed from what it appeared to be in advance of the hearing before me. I extended time on 5 March for Mr Ward to swear and file an affidavit that he had been ordered to swear and file by Cox J, and Mr Ward did that. Mr Ward did not thereafter, on the face of it, participate at all in this action. He did not serve a defence; he did not give disclosure or inspection. Against that background, at paragraph 5 of the draft order before me I am invited to say that the sixth defendant must forthwith provide disclosure and inspection in accordance with directions 12 and 13 of my order of 5 March; and at paragraph 6 that the sixth defendant be debarred from defending the claim.[14]Before me Mr Ward has explained that, at any rate from his point of view, he has settled the claims against him and that is why he has not done anything. I think it is convenient to deal immediately with the position of Mr Ward. True it is that what Mr Ward has told me seemed to come as new information to Mr Solomon. True it is that no formal step has been taken in this action to discontinue a claim against Mr Ward or to record terms of compromise. However, if what Mr Ward tells me is right, it would plainly be a gross injustice for me to make the orders against him which are sought in the draft order which has been put before me.[15]While Mr Solomon, on behalf of the claimant, urged me to proceed on the basis that the orders sought should be made and it should be left up to Mr Ward to take whatever action he thought was appropriate to have them set aside in the event that what he was telling me was right and what Mr Solomon’s instructions appeared to be was wrong, that seems to me to be a wholly unsatisfactory and unjust way in which to proceed. I remind myself that Mr Ward ceased the employment of the claimant a considerable period of time before any of the other individual defendants. The working hypothesis on behalf of the claimant as explained by Mr Solomon at paragraph 10 of his skeleton argument for the hearing before me is that, in short, this is a “team move” case.[16]If it was a “team move” case in which Mr Ward was involved, then one might expect, as one could see to an extent in the cases of some of the other individual defendants, that they terminated their respective employments with the claimant around about the same time and commenced their new employments with the first defendants around about the same time. But the position of Mr Ward is quite different. He terminated his employment, on any view, about five months earlier than any of the other defendants. He was never employed by the first defendant, unlike the other individual defendants apart from Mr Crisp, and the evidence of him doing anything which might be considered as contrary to the business interests of the claimant was slight, amounting to contacting two former clients of the claimant in December 2013, as I have mentioned.[17]I summarise those provisions because, what Mr Ward tells me has happened is absolutely what one would expect to happen in circumstances in which the basis for a claim against Mr Ward seems to be almost wholly undetectable. It is possible that what Mr Ward tells me is not right, but it seems to me to be overwhelmingly likely that it is right, and that is why I am not persuaded that it is right for me today to make any order against Mr Ward. What I am going to do in the case of Mr Ward is stay the proceedings against him, with liberty to the claimant to apply to lift the stay in the event that the claimant asserts that it has not compromised the claim against Mr Ward. What I anticipate is that, if such an application is made – and I am fairly confident that it will not – it will be properly supported with evidence to show, not only what the position of the claimant is, but also to explain, so far as the claimant considers that it can, how Mr Ward has firmly the impression which he has told me.[18]Having dealt with the case of Mr Ward, I think it is convenient next to consider the case of the first defendant. What is said on behalf of the claimant is that various disclosure lists of each of the Mishcon defendants (including Mr Crisp for this purpose) are defective for a number of reasons. The matters relied on are set out, as will be clear from the terms of the draft order to which I have already referred, in an email sent on 10 April of this year at 1621 hours by Mr Philip Steele of Brabners LLP to a number of others, most of whom are employees of Mishcon de Reya LLP.[19]The matters complained of, in summary, are these: that there has been no disclosure of dealings with clients or prospective clients of the claimant who are not identified in the Amended Particulars of Claim; that there has been no disclosure of dealings with specific clients of the claimant identified in the Amended Particulars of Claim, and the parties specifically there identified are TCS Biosciences Limited and Actiken Limited. The third complaint is that there has been no provision of correspondence regarding the engagement or involvement of the employee defendants with the first defendant. It is accepted I think that the respective contracts of employment have been disclosed, and inspection has been given of those, but there has been no other production of any correspondence between the individual employee defendants, by which I mean the individual Mishcon defendants other than Mr Crisp, and the first defendant.[20]I then go to the fourth complaint, which relates to information technology, email accounts and terms and conditions. As I explained in my judgment given on 5 March, there was, at one point, a website which was operated by the first defendant, which provided certain information to which I referred in my judgment, which was not at first sight consistent with the position of the first defendant before me then, or indeed now. What is said in the email of 10 April is that there should be disclosure of screenshots or printouts of all of the web pages displayed on the website; there should be production of registration forms contained on the website, terms and conditions contained on the website, and so forth.[21]The fifth matter raised is that it is said that the first defendant has failed to disclose any document relating to the relationship between it and the second defendant.[22]The sixth complaint relates to two of the individual employees of the first defendant, Mr Gunn and Mr Davis-Gardner, and it is said that each of them has failed to disclose material identifying the roles that they are individually performing at the first defendant and all correspondence between them and employees of the first defendant relating to such employees making contact with clients or prospective clients, and the execution of trades.[23]The seventh matter which is identified is Mr Crisp’s deletion of documents. How that comes about is that Mr Crisp did provide disclosure by list, along with the other Mishcon defendants, in accordance with the order of Wilkie J (at any rate as to time) and at the conclusion of his disclosure list Mr Crisp said this:
“I have had the documents numbered and listed below, but they are no longer in my control. (1) All emails in my personal account with the domain @firstrate.com or responding to the search term “first rate”, which were deleted on or around 25 February 2014; (2) The contents of my laptop computer, which was left in a repair shop in Dubai United Arab Emirates on or around February 2014 and which I believe has been destroyed or being sold for parts, such that it is no longer in my possession or control.”
[24]True it is that, beyond those descriptions, there was no listing of the documents which had been deleted or might have been deleted. Mr Crisp, appearing before me in person, has explained that why he deleted the documents which he did delete on or about 25 February 2014 was because of the terms of an order made in this action by Cox J on 13 February 2014. That order, amongst other things, at paragraph 3 required that the defendant:
“... must deliver up to the claimant’s solicitors by no later than 4pm 19 February 2014 all property belonging to the claimant, including any confidential information which is in the defendant’s possession. If any such property or confidential information exists only in computer readable form, the defendant must cause it to be printed out or copied onto an electronic medium and given [to] the claimant’s solicitors. 4. The defendant must delete all confidential information from any computer discs, tapes or other reusable material in the claimant’s possession or under his control and destroy all other documents and tangible items in his possession or under his control which refer to or contain any confidential information by no later than 4pm 19 February 2014.”
[25]I think there was a hint of a suggestion that Mr Crisp may not have caused the documents which fell within paragraph 3 of the order of Cox J to be printed out or copied onto an electronic medium, but whether that is so or not is not a matter that I am in a position to deal with. Certainly it is not, before me, sought to have any finding that any one of the parties before me has been in contempt of court, although there have suggestions other than the one which I have just mentioned that there have been breaches of orders of this court, not least because on the face of it, if Mr Crisp deleted emails around 25 February, he had not complied with the order of Cox J to do it by 4pm on 19 February. Be that as it may, the position of Mr Crisp was in essence simply this, “I have complied with the order of Cox J, at least in relation to deleting material which was or might be confidential information. I didn’t make a note of what I was deleting before I deleting it and I can’t tell you now what it was I did delete.”[26]That involves a slight departure from focus on the first defendant, and it is important for present purposes to focus on the first defendant. All of the complaints about the inadequacy of disclosure other than that in relation to Mr Crisp seem to amount to a criticism of the disclosure given by the first defendant. Mr Solomon submitted that the third complaint about correspondence relating to the engagement and involvement of the employee defendants with the first defendant, and the sixth complaint concerning Mr Gunn and Mr Davis-Gardner also applied to individuals, but the main thrust of the complaint was that the first defendant should have given disclosure of documents in these categories and had failed to do so.[27]Mr Solomon very properly has drawn to my attention a recent decision of His Honour Judge Behrens sitting as judge of this court in Leeds in the case of Dinsdale Moorland Services Ltd v Evans [2014] EWHC 2 (Ch). In the course of his judgment His Honour Judge Behrens, who was concerned with the question of an unless order, as am I, said this: “130. I was referred to two authorities – Realkredit Danmark v York Montagu reported in Westlaw at [1998] WL 104421 and Re Atrium[2013] EWHC 2882.131. Realkredit involved the dismissal of a claim for failure to comply with an "unless order" for discovery. A list was provided within the relevant time but it was alleged to be deficient. At first instance it was held that the list was woefully inadequate. There was no evidence that satisfied the judge that it had been undertaken in careful fashion and large gaps remained. Accordingly he held there was a failure to comply with the "unless order" and struck the case out. The Court of Appeal allowed the appeal. A number of passages from the judgment of Toulson LJ show the basis of the decision: There was nothing unclear about the order made in this case, in that it required service of a list of documents. But a list was served so, prima facie , the order was complied with. Interestingly there is no reported case of an action being struck out as a result of a list being incomplete. But there is in the much litigated field of Further and Better Particulars where, in Reiss v Woolf [1952] 2 QB 557, at pages 559–560, the Court of Appeal approved a passage from the judgment of Devlin J who said: "So construed, 'default' refers to default in the delivery of a document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith and which can fairly be entitled 'particulars'. It must not be illusory; … That is the test, in my judgment, and not as the plaintiff contends, whether each demand for particulars has been substantially met." … In the present case the court was only concerned with whether the unless order had been complied with. The lenders had conceded that the valuers' affidavits would have justified the making of an order for specific discovery. But no such order was sought or made. Had the judge been asked to make such an order he would have had to consider in relation to each category of documents identified in the application the arguments about relevance and necessity which are deployed at length in the skeleton arguments for this appeal and were deployed before the judge.… Applying the language of Reiss v Woolf , I think the lenders' list could fairly be described as a list. It was not illusory. It would still be a list even if a subsequent application for specific discovery had elicited further documents. So I think the judge was persuaded to adopt the wrong approach and applied the wrong test to the valuers' application to dismiss the claim and therefore his decision cannot stand. This was not simply an exercise of the judge's discretion. In my judgment if he had approached the question he had to decide in the way I think he should have done he would have decided that the lenders had complied with the unless order. I do not think that the conclusion I have reached will mean that unless orders for discovery are worthless. In many cases where they are made no list is served at all. Both counsel conceded, rightly in my judgment, that a court could infer lack of good faith where it was obvious from patent deficiencies in the list that it had been prepared in apparent but not real compliance with the obligation to give discovery.132. Re Atrium involved an unless order in relation to an unless order requiring the liquidators to conduct a search for documents falling within CPR 31.6 by a specified date. In the course of his judgment Birss J referred to a classification of the authorities by Counsel which he did not, in the end find helpful. In paragraph 30 he referred to the decision in Realkredit and pointed out it had been followed in two subsequent Court of Appeal cases. In paragraph 31 he explained Realkredit thus: There the Court held that since a list had been served, prima facie the relevant order had been complied with. The remedy, if a party is dissatisfied with a list already provided, was an application for further disclosure. The question of compliance with the court order was not simply an exercise of the court's discretion. In the case before the court the list provided could not be called illusory.133. In paragraphs 33 and 40 he made the point that in order to determine if there is a breach one needs to determine exactly what the order requires the party to do. He had to consider whether the liquidators had carried out a reasonable search. This could be done on inference but the deficiencies would have to be so significant that it could be said that a reasonable search had not been carried out.” "So construed, 'default' refers to default in the delivery of a document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith and which can fairly be entitled 'particulars'. It must not be illusory; … That is the test, in my judgment, and not as the plaintiff contends, whether each demand for particulars has been substantially met."[28]I have to look at the circumstances concerning the first defendant in this application in a slightly unusual context. In circumstances with which I need not be directly concerned, the claimant has come into possession of a full copy of an email sent by Mr John Barnett of the second defendant to the first defendant. It is an email dated 6 February 2014 and seems to have been sent at 3:46:32 in the afternoon on that date. On the face of it, the email is an account given to the first defendant by the second defendant of trades which have been undertaken in the month of January 2014. While exactly what each of the columns refers to is not immediately clear, there certainly is a column (the fourth column from the left) which appears to list the customers for whom the trades were undertaken , and there is another column, the significance of which is not immediately apparent, but what is quite striking about it is that in each instance the name of the first defendant, then using the name OPT Global Limited, is set out.[29]That document is to be compared with what has been provided by Mishcon de Reya LLP in ostensible performance of the obligation to give disclosure from the first defendant. What has been provided is a document which runs to two pages. The email dated 6 February, which I have mentioned, in the form in which it is put before me is helpfully numbered from 1-9 so that there are pages missing. It appears to be a part of the same document, but a part of the same document which has been modified so as not to reveal that it is an email and to strike through vast chunks of what can be seen on the unredacted version which has been obtained, as I say, from an alternative source.[30]The position in relation to the first defendant is this: that there are some indications, at least, of procrastination on the part of the first defendant in giving disclosure, by which I have in mind the request by Mishcon de Reya LLP for an extension of time for compliance, and the application without notice to the Practice Master, Master Eastman. One has the complaints which I have rehearsed in Mr Steele’s email and, insofar as those emails relate to the position of the first defendant it seems to me that those complaints are essentially well founded, is that there are categories of documents that one would expect to be included in the disclosure given on behalf of the first defendant - most clear beyond argument being the criticisms of the failure to provide screen shots from the webpages - but there must also be documents relating to the dealings with the second defendant, at the very least, but disclosure has not yet been given of documents in those categories. One then finds a blatant example of a failure to give proper inspection of a document which undoubtedly and unarguably was disclosable because a version of it was disclosed. What one can see from the unredacted document is that the document is likely to be one in a series because there is a reference on the document to there being a balance from December which has been brought forward for the purpose of a calculation, suggesting that there was a similar document in December. The probability is that there would be similar documents in respect of the entirety of the period over which the first defendant and the second defendant have been dealing.[31]I am satisfied that, so far as the first defendant is concerned, there has been a failure to comply – I am tempted to say a deliberate failure to comply, but it is enough to say a failure to comply – with the order of Wilkie J, with the consequence that the defence of the first defendant stands struck out.[32]In the submissions before me, as well, implicitly, as in the complaints of Mr Steele in his email of 10 April 2014, there has been no attempt to differentiate between the position of the first defendant and disclosure to be expected from the first defendant, and the position of any of the other defendants for whom Mishcon de Reya LLP acted at the material time; that is the say, the individual original Mishcon defendants and Mr Crisp.[33]It is far from clear from the material which has been put before me that documents which undoubtedly should have been disclosed by the first defendant, should also have been disclosed by one or other of the individual defendants for whom Mishcon de Reya LLP acted. It is, perhaps, not immaterial that, in advance of disclosure taking place, a document was prepared by Brabners LLP which had this rubric, “non-exhaustive examples of documents to be disclosed by the defendants”. There was then an individual treatment, not only of the first defendant but also the third defendant, the fourth defendant, the fifth defendant, the sixth defendant, the seventh defendant, the eighth defendant and the ninth defendant.[34]I have been told by Mr Gunn that, in preparing their individual disclosure lists, the individual defendants for whom Mishcon de Reya LLP acted used that list as a guide for what needed to be disclosed. It is far from obvious to me at the moment that that is not correct. So in the case of the individual original Mishcon defendants (if I can put it like that) the position seems to me to be this: that disclosure lists and inspection have been provided. Those are not obviously deficient and consequently, in the light of the guidance of Toulson LJ in Realkredit Danmark v York Montagu in the passage cited by His Honour Judge Behrens in Dinsdale Moorland Services Ltd v Evans, I think I proceed on the basis that, on the face of it, there has been compliance.[35]So far as Mr Crisp is concerned, Mr Crisp is entitled to the benefit of that same approach, apart from the question of the deletion of emails to which I have referred and his failure to list whatever was on his computer when he says he left it with a repairer in Dubai. So far as that is concerned, Mr Solomon is technically entirely right: one should, when giving disclosure, list those documents which one had once but does not have anymore. But in practical terms that is likely to be very difficult and often it is impossible, because one’s ability to remember what one once had but does not have any longer is likely to be imperfect, at the very least. In the case of Mr Crisp also, I am not satisfied that the list which he prepared should be regarded as not an attempt in good faith to provide whatever information was disclosable and, consequently, I am not satisfied that any of the individual defendants to whom the order of Wilkie J applied should have their defences struck out.[36]So far as there was a request for specific disclosure against individual defendants, theoretically, I could require Mr Crisp to verify what he says in his list of documents about the deletion of the emails and so forth. But bearing in mind that this is the Wednesday before Easter and the last day of term and that, subject to a decision that I have yet to reach, the trial window may start on the first day of next term, 29 April, it seems to me that that would be a futile waste of Mr Crisp’s time and the time of anyone who would be otherwise interested in considering what he might say.[37]So far as disclosure was sought against Mr Gunn and Mr Davis-Gardner in relation to their roles with the first defendant, I am persuaded that it is appropriate for them to respond to the requests, by which I have in mind this: that they should now undertake a search, so far as necessary and, if and insofar as anything is found, prepare another list, a supplementary list of documents, listing what has been found and providing copies of them by way of inspection. If and insofar as they do not find something, then I think that they should each make a witness statement explaining the efforts that they have made and what the outcome has been.[38]They are currently each acting in person. I have been told by Mr Gunn that they are hopeful of finding more economic legal advisers than Mishcon de Reya LLP and that may yet happen; but bearing in mind that they are now acting in person, I think it would be harsh to expect them to have done all of this by 4pm tomorrow afternoon, which is less than 24 hours from now, and I am inclined to say that it should be done by 4pm on 22 April, which is next Tuesday.[39]I come then to the position of the second defendant. As I have said, it is not suggested that the second defendant has not provided a proper list; it is not suggested that the second defendant has not provided proper inspection. What is said is that there are specific categories of document which should yet be provided. The categories are listed again in the email of 10 April. I think it is not really necessary to go through the individual categories, of which there are five, for the purposes of this judgment, because Mr James Chan, the solicitor acting on behalf of the second defendant, has made a witness statement in response to the application before me and he has very helpfully, amongst other things, set out in his witness statement at paragraph 7, starting at subparagraph (4), his instructions in relation to the categories of document which are sought from the second defendant. So far as all of them except one is concerned, Mr Chan says, on instructions, that there is nothing to disclose, there is nothing there. So far as the fifth category is concerned, that category is “Details of the turnover and profits generated from all foreign currency trades since March 2011”, Mr Chan says these documents, which implicitly exist, are irrelevant to the issues pleaded in the amended claim; they are commercially sensitive; they are not disclosable.[40]With great respect to Mr Chan, I am not persuaded that that is right. One of the important issues in this case is the relationship between the first defendant and the second defendant, and in particular whether, as the first defendant and the second defendant now present the matter, the trades which are, it appears, obtained by telephone calls made by employees of the first defendant are entirely for the benefit of the second defendant.[41]The material which was put before me at the hearing between 3 and 5 March of this year certainly indicated that the arrangement between the first defendant and the second defendant had fluctuated over time and might have been specifically organised so as to put forward, by the time of the hearing then before me, a particular presentation of activities. It seems to me that it is relevant to know for how long the second defendant has actually carried on foreign currency trades; whether, as it contends, since March 2011 or, as the claimants contend, and there is some evidence to support their contention, since about December of last year.[42]Consequently, I am going to direct that details of the turnover and profits generated from all foreign currency trades since March 2011 be disclosed by the second defendant.[43]The other category of documents which I am going to order should be disclosed by the second defendant are all documents in the category of the email of 6 February 2014 to which I have referred. It is possible that the answer is that there are not many. It is possible that the answer is actually that there are none. But on the face of the email of 6 February, this is a document which ought to be disclosed; similar documents of the same category should be disclosed, or some explanation should be given by witness statement, if it is said that this is the only one, as to why it is the only one.[44]How long should the second defendant have to comply with those rather limited orders that I am minded to make in its case? The order which I am invited to make is that there should be compliance by 4pm tomorrow afternoon. Although I hope I have been realistic in looking at the time which litigants in person might require to comply with orders, the second defendant has the benefit of the services of Mr Chan, and I am confident that, bearing in mind that one is looking at only two categories of document, and probably, whatever view one takes, a limited number of documents in each of those categories, it seems to me that 4pm tomorrow afternoon is an achievable time, subject to hearing further from Mr Challenger if he wishes to address me on that point.[45]There remain the matters which I have mentioned briefly, the question of the time for exchange of witness statements and/or serving an updated schedule of loss and the commencement of the trial window.[46]In all of the circumstances, I am persuaded that it is appropriate to extend the time for exchange of witness statements to 4pm, 24 April 2014. That is requested by the claimant I think on sound grounds. It will be for the benefit of the individual defendants now acting in person. Only the second defendant resists it, and that only partially, because the second defendant wants until 4pm on 24 April 2014 to prepare and serve any witness statement which it wishes to dealing with Mr Barisha (?). So I do not think actually anyone seriously resists extending time to 4pm, 24 April 2014 for the witness statements, and it is sensible to do that.[47]By parity of reasoning, it is sensible to extend time to the same date for the service of the updated schedule of loss on behalf of the claimant.[48]We then come to the trial window. I take into account not only the application of the claimant in relation to altering the trial window but also the individual defendants acting in person, who are likely to be able to take advantage of another seven days, either to get themselves some new lawyers or at least to prepare themselves better to defend themselves in person at the trial. I also take into account that the consequence of my decision that the defence of the first defendant should be struck out, is that the length of the trial should be reduced. I am optimistic that the trial will not be concerned with the position of Mr Ward for the reasons which I have already explained. I am minded to vary the start of the trial window to 6 May in the hope and expectation that, if the trial window commences then, the trial will be completed next term; that is to say, by 24 May, without causing difficulty or prejudice to any of the parties.[49]Mr Challenger has raised with me his own personal position. His personal position is this. He is available next term to represent his clients, the second defendants, but, if the matter were not to be concluded next term, then he would be in professional difficulties. If that is a correct understanding then, for the reasons which I have explained, I am optimistic that, if the trial window is varied to commence on 6 May, the trial will nonetheless be completed by the end of term on 24 May.

order

“Unless the second defendant does provide specific disclosure and inspection by no later than 4pm on 17 April 2014 of the items set out in the claimant’s email dated 10 April 2014 timed at 16.21 the defence of the second defendant be struck out.”