UK Law and Practice Contributed by: Simon Antrobus KC, Mike Atkins, Elizabeth Boon, Richard Sage, David Myhill and Alex Antelme KC, Crown Office Chambers
Where either party fails to comply with the above protocols, the court may impose sanctions. When deciding whether to do so, the court will look at: • whether the parties have complied in sub - stance with the relevant principles and requirements; • the effect any non-compliance has had on another party; and • whether the non-compliances are minor or only technical shortcomings. Sanctions that the court may impose include requiring an explanation for any breach or vari - ation of protocols (by way of a formal witness statement), awarding costs, and staying pro - ceedings entirely until there has been compli - ance with the relevant pre-action protocol. 2.6 Rules for Preservation of Evidence in Product Liability Claims Whilst there are no specific rules for the pres - ervation of evidence in product liability claims, broad documentation preservation obligations are imposed on all parties to proceedings in England and Wales, including product liability claims. The Civil Procedure Rules (CPR) Practice Direc - tion 31 paragraph 7 relates specifically to the “preservation of documents” . As soon as litiga - tion is contemplated, the parties’ legal repre - sentatives must notify their clients of the need to preserve disclosable documents. Those docu - ments include electronic documents that would otherwise be deleted in accordance with a docu - ment retention policy, or in the ordinary course of business. The extent of the reasonable search required by CPR Rule 31.7 for the purposes of standard dis -
closure will depend on the circumstances of the case, including in particular the factors referred to in rule 31.7 (2), such as: • the number of documents involved; • the nature and complexity of the proceedings; • the ease and expense of retrieval of any par - ticular document; • the availability of documents or contents of documents from other sources; and • the significance of any document that is likely to be located during the search. Depending on the circumstances, matters for the parties to consider when preserving docu - ments include: • hard copy documents; • the nature and extent of the electronic stor - • documents in a particular place or places; • documents falling into particular categories; and • custodians. The preservation of all relevant evidence must be considered, including any relevant products, devices, design files, testing information, etc. The nature and extent of what is to be preserved will depend on the detail and ambit of the case set out in the Letter of Claim. Once a preserva - tion requirement is in place, the provision relates to all past, present and future documents. age systems; • date ranges; Failure to comply with these preservation requirements – including by interfering with evi - dence that is likely to be subject to standard disclosure (by deleting, overwriting, updating or destroying documents and evidence) – has far- reaching consequences. The courts can and do impose the following “sanctions” :
283 CHAMBERS.COM
Powered by FlippingBook