The early stages of disclosure (identifying, scoping, preserving and collecting potentially relevant documents) is becoming an increasingly technical area, often requiring specialist IT and legal input. The recent Court of Appeal case of Kieran Corrigan & Co Ltd v Timol [2024] reinforces the importance of getting this process right. Small oversights in the scope of the repositories being searched and their potential technical limitations can have significant consequences – in this case it resulted in a re-trial.

The appeal concerned the issue of whether a director could be personally liable for breach of confidence if he approved the marketing by his company of a tax planning structure which, unknown to him, had been developed by others at his company using confidential information which they originally obtained jointly from a third party. 

The defendant director, Mr Timol, was originally held by the Court not to be aware or on notice that the tax planning structure contained confidential information provided by the claimant/appellant, Kieran Corrigan & Co Limited. However, one of the appeal grounds asserted that this factual finding was wrong and/or unjust on the basis new documents relevant to the issue had not been disclosed at trial and were only disclosed at a subsequent quantum hearing. 

Mr Timol accepted the documents were relevant and should have been disclosed earlier, but he disputed that the documents would have influenced the result of issue / judgment. His explanation for the missing documents was that they were inadvertently missed the first time round because he had conducted keyword searches on his laptop which he suspected was not fully synced with backups on a cloud-based server.  

Despite concluding that the new documents were not in and of themselves decisive, the Court of Appeal ordered a re-trial of the liability issues impacted by the issue. A likely costly consequence to a mistake that could have been avoided if greater scrutiny and/or technical assistance had been given at the point initial mailbox searches were carried out.  

For more information about the law, technology and practice of disclosure, contact Tom Whittaker or David Hine.