Call for sworn disclosure over £90 million Lord Street case files – as advocate says documents should have been ‘frozen’ in 2016

• Claimants seek affidavits of compliance from two departments and their advocate
• Court told disclosure has been ‘drip fed’ for nearly seven years
• Government urged to explain how emails and documents were ‘locked down’
• Judge accepts duty to preserve evidence once litigation is in prospect
• But rules affidavits are a ‘very last gasp’ measure and not yet justified

The First Deemster has been asked to order sworn statements setting out exactly how government departments handled key documents in the £90m Lord Street case – after the claimant complained of nearly seven years of ‘drip fed’ disclosure.

In a tense hearing last month on 5 November, claimant advocate Victoria Unsworth said the Department of Infrastructure and another defendant department – together with their lawyer – should be required to provide detailed affidavits of compliance.

The legal move is way of compelling parties to explain – in sworn statements – what they had done to secure, search and produce records so that there is more accountability, and less room to fudge commentary with excuses and unclear text, because effectively the evidence is given under oath.

In addition, there is a second check against inaccuracy in the form of a compliance statement, in which a lawyer must state that he or she believes the account is true.

Ms Unsworth told the court that the disclosure exercise dated back to a pre-action order obtained in February 2019 and had become ‘extremely difficult to process’ and costly.

‘We are nearly seven years unbelievably on the task of disclosure,’ she said. ‘We have had drip fed disclosure all the way through, which has been extremely difficult to process, costly.

‘And what we have had to do each time is review all of the documents in detail, produce a list of what is outstanding or has not been disclosed, go back to the Attorney General’s chambers and go through this process.’

According to Ms Unsworth, the claimants have been repeatedly told that disclosure obligations have been complied with in full.

‘Therefore, what we are seeking,’ she said. ‘because of the issues that we have had, is affidavits of compliance, both from the first and second defendants and the advocate who has conducted the disclosure exercise, what process has been followed and how they have met their obligations’.

Such affidavits, she explained, would go beyond a standard disclosure statement and would deal with questions like how email accounts and documents were ‘locked down’, what search terms were used, when they were applied, and who carried out the searches.

A parallel affidavit from the advocate would describe when they took control of the documents and what process was followed, without straying into privileged legal advice.

Ms Unsworth argued that the need for sworn evidence was sharpened by the history of the case.

She pointed out that the claimant’s principal had made a subject access request in 2016 or 2017 and that lawyers’ letters from Eversheds followed in April 2016.

From that point, she said, the departments knew ‘there is an issue, a legal issue, and it was likely to end up in litigation’.

If documents are no longer available, ‘we ought to have an explanation as to why they are no longer available’.

First Deemster Andrew Corlett broadly accepted the principle that potential litigation triggers a duty to preserve evidence.

Summarising the position in short terms, he said that as soon as a government department knows there is going to be litigation, or a reasonable prospect of it, ‘they must ensure that all documents are, as you say, locked down, nothing is destroyed’.

He added that the advocate must take control of the whole process ‘certainly by the time proceedings are issued for pre-action disclosure and probably well before that too’.

However, when he came to give his provisional view later in the hearing, the judge signalled that the threshold for requiring affidavits had not yet been crossed.

He observed that sworn statements from lawyers are ‘very much a very last gasp attempt where things have gone really quite badly wrong’ and that even requiring the defendants themselves to file witness statements would usually only be appropriate where something ‘seriously has gone wrong’.

At present, he said, he was not persuaded that was the case.

While acknowledging that the matter had been addressed ‘far more slowly than ought to have been the case’ and that this was a justified criticism from the claimant’s side, Deemster Corlett said he saw no evidence ‘of any form of deliberate trying to undermine the disclosure process’.

The clash over affidavits comes on top of rows about missing minutes, disputed email trails and the late disclosure of a dedicated Lower Douglas project inbox, all of which have fuelled the perception of a grinding and incomplete disclosure exercise around the multimillion pound redevelopment.

For now, though, the court has stopped short of compelling government departments and their advocate to swear to the detail of their searches, keeping the nuclear option of affidavits in reserve while urging the parties to resolve as much as possible by agreement.