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Monday, 1 March 2021

Pipia v BGEO Group Ltd

[2021] EWHC 86 (Comm)

This application was for further Extended Disclosure under the Disclosure Pilot. The focus of the application was email correspondence and the contents of the mobile phones of two key witnesses. At its heart, the key issue was whether the phones were within the control of BGEO. However, Mrs Justice Cockerill made some interesting observations about the type of information that could be available:

“It is submitted, and I accept, that his WhatsApp, Viber and SMS messages will likely give the Court an unguarded picture of some of his actions and this may assist as to his intentions. I also accept that that picture may very well be significant, in a case which raises major issues concerning  […] good or bad faith at relevant times and where it appears that the documentary record is not as full as it is in some cases and where there may be issues about the accuracy of some of the documentary record (for example there is at least one issue about the dating of a document).” 

This meant that if the messages were in the control of BGEO, it would be right to make an order for disclosure. However, the Judge also noted that the fact the documents “would doubtless be interesting” did not mean that the documents were necessarily disclosable. In the end the question was one of necessity for the just disposal of proceedings. Given (i) the picture which emerged of a business environment where the email and documentary record may not be of the most assistance; (ii) the immediacy of mobile phone communications via WhatsApp and similar means and (iii) the nature of the issues, and in particular the apparently broad view taken of bad faith under Georgian law, the Judge was just persuaded that this hurdle was met.

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