Fiddes v Channel 4 Television Corporation & Ors (CA)
Reference:  EWCA Civ 516
Court: Court of Appeal (Civil Division)
Judge: Pill LJ, Smith LJ, Wilson LJ
Date of judgment: 24 Mar 2010
Summary: Defamation - Civil Evidence - Disclosure - Duty of Search - Electronic Documents - Deleted Emails - Restoration of Back up tapes - CPR Practice Direction 31
David Sherborne (Appellant)
Instructing Solicitors: M Law for the Appellant; Aslan Charles Kousetta LLP for the Respondents
In a libel action concerning a documentary programme about Tito Jackson and his family moving to Devon, the appellant appealed against the refusal of his application for specific disclosure. He had sought an order for the restoration and search of backup tapes on the Second Defendant’s computer system for deleted emails sent by or to the Third Defendant (the director/producer) during the period of the making of the programme. The judge concluded, amongst other things, that there was no sufficient likelihood of finding any emails that were significant or relevant to the issues in the claim. The appellant contended that the judge had wrongly elevated this factor to be the decisive factor in the application.
Whether the judge had correctly applied the factors set out in CPR PD 31 in deciding whether or not to order the Defendants to restore and search back up tapes in order to retrieve deleted emails.
Dismissing the appeal:
The judge had correctly considered the various factors relevant to the decision. The extent of discovery had to be assessed on a case by case basis. The judge was right to consider the various features of the case, including the need to limit costs as far as possible, in order to make an order tailored to achieving a just outcome. There was nothing in the material before the judge to found a sufficient basis for ordering further disclosure of communications in the relevant period. The appellant’s focus on the Third Defendant’s altered diary did not provide a basis for a belief that any evidence would appear in the undisclosed emails. The judge’s conclusion was justified and there was no basis on which to interfere with his decision.
An order to restore and search back up tapes for emails is not standard and whether such an order will be granted will depend upon the specific facts of each case.