Handing down judgment last week in Cabo Concepts v MGA Entertainment [2022] EWHC 2024 (Pat), Mrs Justice Joanna Smith ordered MGA to repeat the disclosure exercise in conjunction with an independent e-disclosure provider.
Smith J said: ‘There is no suggestion that the deficiencies in disclosure were deliberate, but there is no question that they were serious.
‘By way of example, the original document harvest… produced 204,950 documents whereas a recently conducted re-harvest has produced 657,996, an increase of over 200%. The deficiencies led, at the eleventh hour, to the collapse of the trial and to Cabo finding itself in the unenviable position of having another two years to wait for determination of its claim.’
Smith J awarded indemnity costs of 45% of Cabo’s total £1.3m costs incurred in preparation for the trial. She said MGA’s disclosure exercise ‘took the wrong course from the outset’, as Fieldfisher did not have the expertise to supervise the technical harvesting of documents and ‘accordingly the legal team relied on the technical capability of MGA’s IT team to conduct the harvesting exercise’. No UK e-disclosure specialist provided supervision. Nor did Fieldfisher instruct an e-disclosure expert to consider MGA’s approach, which Smith J said ‘would have been an obvious precautionary measure in a case where the client had no experience of English litigation’.
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