Q&As

What are the sanctions in English law and arbitration for a party that has destroyed documentary evidence?

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Published on LexisPSL on 12/12/2019

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • What are the sanctions in English law and arbitration for a party that has destroyed documentary evidence?
  • Sanctions under English law
  • Disclosure under CPR 31—preservation of documents
  • The disclosure pilot scheme
  • Disclosure in arbitration proceedings
  • Other considerations

What are the sanctions in English law and arbitration for a party that has destroyed documentary evidence?

Sanctions under English law

Disclosure under CPR 31—preservation of documents

Documents that a party intends to rely on in litigation should be preserved as soon as litigation is contemplated. CPR PD 31B, para 7 expressly requires practitioners to advise their clients of the need to preserve disclosable documents as soon as litigation is contemplated. This obligation encompasses past, present and future information. In relation to the preservation of electronically stored information it is particularly important to ensure that nothing is altered, deleted, lost or destroyed. For more information, see Practice Note: Disclosure—preserving documents.

If a party fails adequately to preserve disclosable information, it may face satellite litigation regarding the documents in question. The court may order the party to provide an explanation why documents have not been preserved (Glaxo Wellcome UK Ltd v Sandoz Ltd). If the court considers it appropriate, it may draw adverse inferences against a party which fails to produce documents (Logicrose v Southend United Football Club (No 1) and Earles v Barclays Bank Plc ) and see Practice Note: Witness evidence—giving evidence at trial under the section: ‘Drawing inferences in the absence of witnesses or witness evidence’. The court may also make costs orders against the party. An extreme consequence might be that the court strikes out

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