Finding the messages: applications for specific disclosure in modern Guernsey litigation

What happens when a party believes its opponent's disclosure is incomplete?

Gone are the days when disclosure meant searching through filing cabinets. In modern litigation, relevant material may be spread across digital conversations, personal devices, cloud storage, photographs, banking apps and communications held by third parties.

In this article, Ogier's Dispute Resolution experts consider the rules governing specific disclosure in Guernsey and how they apply to modern forms of evidence, including WhatsApp messages.

The test for specific disclosure

The test for specific disclosure Under Rule 71 of the Royal Court of Guernsey's Civil Rules 2007, a party dissatisfied with its opponent's disclosure may apply to the Court for an order for specific disclosure. The burden lies on the party making the application. It is not for the defending party to justify why a document should not be disclosed. The key Guernsey authority is Al-Nashir Popat v Adil Popat, Azim Popat and Louvre Trustees Limited [2021 GLR 297] (Popat).

The applicant must satisfy three requirements:

1. existence: there is sufficient evidence that the document exists and has not been disclosed

2. relevance: the document relates to matter in issue in the proceedings

3. control: there is sufficient evidence that the document is in the possession, custody or control of the other party

However, satisfying those three requirements is not the end of the matter. The applicant must also persuade the Royal Court of Guernsey to exercise its discretion to order specific disclosure. In doing so, the Court will have regard to the overriding objective, including the need to save expense and deal with the case proportionately, taking account of matters such as the sums involved, the complexity of the issues and the financial position of the parties.

In practice, an application for specific disclosure will be accompanied by a detailed affidavit setting out with care how each pre-condition is met on the facts and why the Court should make the order: what documents are sought, why there is reason to believe they exist, why they are relevant to the issues in dispute and why they are within the other party's possession, custody or control.

Practical considerations when applying for specific disclosure

It may sound easy, but that is not necessarily the case. Applications for specific disclosure need to be approached with care. An unsuccessful application risks a costs order and, in practical terms, can hand the opposing party an early procedural victory before trial.

There are several points parties should bear in mind, seeking specialist advice at the outset.

Try to resolve the dispute first

The Royal Court does not want to act as a broker between the parties and will expect parties to have taken reasonable steps to resolve their differences over disclosure before bringing an application. If court intervention does become necessary, the parties should have narrowed the areas of disagreement so that the remaining issues are clearly identified.

Be specific about what you say is missing

A general suspicion that an opponent must have further documents is unlikely to be enough. The applicant should define the documents or category of documents sought carefully and explain the evidential basis for believing that they exist and have not been disclosed.

That exercise should be tied closely to the pleaded issues. The question is not whether the documents might be interesting or useful, but whether they are relevant to an issue the Court actually needs to determine.

This is illustrated by Popat itself, where the great majority of the 45 categories of documents sought were refused, including because requests were framed too widely or were not sufficiently connected to the pleaded case to establish relevance.

No fishing expeditions

Beware: this is not to be regarded as an opportunity to investigate an opponent's documents in the hope you might find something that can stick. As Mustill LJ memorably put it in Berkeley Administration Inc v McClelland (1990) F.S.R. 381, disclosure is not about having the chance to “hunt around the documents in the hope that something useful would turn up”.

An application which seeks wide categories of material without explaining why particular documents are believed to exist and why they matter to the issues is therefore likely to encounter difficulty.

When can WhatsApp messages be subject to specific disclosure?

So, where are the WhatsApps? The mere fact that, for example, parties may have communicated extensively by WhatsApp does not mean that one party can require its opponent to trawl indiscriminately through every conversation and just hand it all over.

Instead, an applicant seeking specific disclosure of WhatsApp messages, just as with evidence of any other form, will need evidence which satisfies the fundamental requirements: what messages, or identifiable category of messages, are said to exist? Who were the participants? When were they exchanged? What did they concern? Why are they relevant to an issue in the proceedings? And what is the basis for saying that they remain within the other party's possession, custody or control?

The technology may have changed dramatically but the underlying principle has not: specific disclosure should be exactly that, specific.

Practical takeaway

For parties considering an application, the lesson is to resist the temptation to ask for everything that might conceivably contain something useful. A narrower request, supported by evidence and tied directly to the pleaded issues, is likely to place the applicant in a much stronger position.

Equally, a party faced with such an application should examine each request against the requirements of existence, relevance and control, as well as the proportionality of the order sought.

Ultimately, applications for specific disclosure turn on their own facts. Parties contemplating, or responding to, an application should therefore seek specialist advice at an early stage.

How Ogier's Dispute Resolution team can help

Ogier's Guernsey Dispute Resolution team advises clients on all aspects of contentious matters before the Royal Court, including applications for specific disclosure. We can assist parties in assessing disclosure requests, identifying the evidence required and navigating applications strategically and proportionately.

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Disclaimer

This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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