FALSE EMAILS, METADATA AND CPR 32.19: A “PROCESS OF FALSIFICATION AND KNOWINGLY PUTTING FORWARD EVIDENCE THAT IS FALSE”
The case of 44 Wellfit Street Ltd v GMR Services Ltd  EWHC 1841 (Ch) was described by Chris Dale as being “like one a much-expanded version of those old-style Finals questions with kitchen sink thrown in”. The judgment of Chief Master Marsh involves a close scrutiny of the evidence, and some robust findings in relation to the defendant’s witnesses. Here I want to look at one aspect in particular- false emails and the impact of CPR 32.19.
“Following disclosure, the Claimant’s solicitors served two notices under CPR Part 32.19 in relation to a considerable proportion of the documents disclosed by the Defendant … The purpose of such a notice is to override the effect of rule 32.19 which provides that a party is deemed to admit the authenticity of documents disclosed, unless notice to the contrary is given. No corresponding notice has been served on behalf of the Defendant. It follows that where there are competing versions of the same document, the Claimant’s version must be treated as being authentic. “
The claimant was seeking possession of commercial property. The defendant alleged it had a lease of the property and an option to purchase. The claimant’s case was that the lease and option were forgeries.
DISCLOSURE: SERVICE OF A NOTICE UNDER CPR 32.19
There were numerous factors in this case which went to the credibility of the defendant’s witnesses. However a remarkable aspect of the case is service of notice under CPR 32.19. The claimant served a notice, meaning that the authenticity of some of the defendant’s documents were not admitted. The defendant did not serve a notice. There were competing copies of various documents. The defendant was thus deemed to admit the authenticity of the claimant’s versions.
It is necessary to deal with disclosure before summarising the facts because of the nature of the Claimant’s primary case. The Claimant’s disclosure does not require any remark save to note a negative point that, despite searches about which there is no complaint or controversy, the Claimant has no record, paper or electronic, of the Lease or the Option or any associated documents.
Aimee Glynn has signed two disclosure statements on behalf of the Defendant. None of the documents that have been disclosed are either originals or original copies: for example, the certified copies of the Lease and the Option are merely copies of what are said to be certified copies. Furthermore, the Defendants have not put forward any explanation for how there come to be two different versions of three emails. It will be convenient to refer to describe these emails as being the “Claimant’s version” and the “Defendant’s version” and the “Disputed emails”.
The Defendant’s disclosure statements both state that a search was carried out for electronic documents in “computer records and storage media which should have contained all of the available electronic information relevant to the case”. And in the two lists of documents the Defendant states that “documents that have been stolen from the Company’s premises” are no longer in its control.
Following disclosure, the Claimant’s solicitors served two notices under CPR Part 32.19 in relation to a considerable proportion of the documents disclosed by the Defendant including, importantly, the Lease and the Option and the Disputed emails. The purpose of such a notice is to override the effect of rule 32.19 which provides that a party is deemed to admit the authenticity of documents disclosed, unless notice to the contrary is given. No corresponding notice has been served on behalf of the Defendant. It follows that where there are competing versions of the same document, the Claimant’s version must be treated as being authentic. Furthermore, although the burden of proof is on the Claimant to prove its entitlement to possession, the burden is on the Defendant to prove the authenticity of the Lease (and to the extent that it is necessary, the Option) and the burden is on the Defendant to prove the authenticity of the other documents upon which it relies, including the Disputed emails.
(a) Paper copies of the Defendant’s version of the Disputed emails. They are said to have been forwarded by Aimee Glynn to her mother Elaine Glynn in 2015, deleted by Aimee Glynn from her Hotmail account, located by her mother in March 2017 and the re-forwarded to Aimee Glynn.
(b) The Claimant’s version of the email dated 24 July 2015 from Roger Harris to Steve Taylor.
(c) Some correspondence between the solicitors acting on the sale and purchase of the Land (but not in connection with the Lease and Option) Judge & Priestley and Bower Cotton albeit that the Defendant has not obtained Judge & Priestley’s file.
(d) Copy letters said to have been found in Paul Glynn’s safe after he died.
(e) Copies of the two versions of the certified copies of the Lease and Option.
(f) Other documents such as copies of diary entries and copies of screen shots of texts from Aimee Glynn’s phone and photographs of the screen shots. The phone is said to have been stolen.
The Defendant claims its ability to retain relevant records and documents has been the subject of misfortune and it has suffered a burglary and a theft of electronic devices and paper documents. According to the Defendant, the first event took place over the weekend of 1 and 2 April 2017 when the Wellfit Street premises were broken into. This was discovered on Monday 3 April 2017 and reported to the Police that day. In response to an enquiry, the Police informed the Claimant’s solicitors that two laptops and commercial documents were stolen. On 2 May 2017, the second event took place when Aimee Glynn’s car was broken into while parked outside her home and a number of items were stolen including a laptop, an iPad and a gym bag containing all of the Defendant’s paperwork relating to the claim. Although it is not directly relevant, I note that accountants, Bruce Allen LLP, who acted for Glynns Metal Recycling Ltd (“Glynns”) wrote to Glynns’ liquidators on 19 November 2015, in response to a request for papers belonging to the company, and were told that recent books were stolen from the back of a car together with a laptop containing summarised records.”
THE DISPUTED EMAILS
Gateley took issue with the validity of the Lease and the Option and in a letter dated 20 March 2017 gave 14 days’ notice of the Claimant’s intention to repossess the Land. This prompted the Defendant to instruct its current solicitors Sahota Newcomb Scott (“SNS”) and after an initial exchange of letters Mr Newcomb of SNS sent an email to Victoria Portman on 31 March 2017 at 9.14. He said:
“I have attached a copy of two emails that have been found by our client which I send as a matter of preaction disclosure. [sic]
They date back to July 2015 and are between Steve Taylor of Judge and Priestley and Tom Luck of Acorn Limited.
They refer to the sale of the property to your client and the negotiations on price to reflect the anticipated lease and re-purchase option.
Mr Harris, Mr Parritt and Leng of your client are copied in.
Both emails are the subject of the Claimant’s CPR 32.19 notice. The Claimant has produced versions of the emails that are in a form deemed to be authentic. In any event, both Mr Luck and Mr Harris from Bower Cotton say the Claimant’s version does not accord with the emails that were sent and received on that day. Furthermore, although Mr Leng is shown on the Defendant’s versions as being copied in, he gave evidence that he did not receive the email. In view of their considerable importance to the outcome of the claim the message in both emails is set out in full. The differences between the two versions are highlighted by the additional words appearing in the Defendant’s versions appearing in italics and underlined.
Email Tom Luck to Steve Taylor of Judge & Priestley 20 July 2015 at 12:46
I have just spoken to Aimee and she is copied in. Best number for her is [omitted]. I said you will be giving her a call to sort out the completion. Now we have the final purchase price to include the lease agreement.
Email from Steve Taylor to Tom Luck on 20 July 2015 at 15:13 [copied inter alia to Roger Harris]
I have now spoken with Aimee and she will be bringing her parents in on Friday morning to sign all the documents.
Roger, for the avoidance of doubt, the documents to be signed are:
2. Stat dec
3. Temporary Licence
4. Variation Agreement
5. Deed of Assignment
6. Lease Agreement with Re-Purchase Option
Is that correct? If so, will you be preparing a fresh Transfer with the amended purchase price to include point 6?
The significance of the additional words to the Defendant’s case is obvious. They provide, if they are genuine, contemporaneous references to the Lease and Option. In addition, the licence is described as “temporary”. Unfortunately for the Defendant, the provision of the two emails did not had the desired effect and it prompted the Claimant to issue this claim and to press for an early disposal.
In addition to the two emails dated 20 July 2015, the Defendant also relies on an email dated 24 July 2015 from Roger Harris of Bower Cotton to Steve Taylor copied to Aimee Glynn, Mr Parritt, Mr Leng and Mr Luck. Although the Defendant says this email was in its possession on 31 March 2017 when SNS wrote to Gateley, for reasons that are not clear, a copy was not provided until later.
Email from Roger Harris to Steve Taylor on 24 July 2015 at 7.09
Please do not forget we need an inventory of the “Plant” point 6. will be drafted and completed at a later date “tbc”“
The additional words are plainly intended to be a reference back to the disputed point 6 in the email dated 20 July 2015.”
METADATA AND FALSE EVIDENCE
The Master considered the issue later in the judgment
(c) Aimee Glynn says she forwarded to her mother in 2015 emails that related to the business and then deleted the emails. This would have involved deleting them both from her inbox and the sent box. On 30 March 2017 Elaine Glynn says she came across several emails on an old iPad that had been forwarded to her and forwarded them back to Aimee Glynn. These are the Disputed emails which are very limited in number although Elaine Glynn said she forwarded a larger number of emails. Both Aimee Glynn and her mother say the emails have not been tampered with. However, the Defendant’s case makes no sense at all. The disputed emails were apparently forwarded in 2015 from email@example.com to firstname.lastname@example.org and forwarded back to Aimee Glynn at the same Hotmail address from Elaine Glynn’s btinternet email address in March 2017. The 2017 email records in a footer that Elaine Glynn’s email was sent from her iPhone although her evidence is that she forwarded the emails from an old iPad that unfortunately has since been stolen from Aimee Glynn’s car. Elaine Glynn said she had an iPhone and it had not occurred to her to search it. She had lost the password to the btinternet account but it had not occurred to her to contact btinternet to get access to her account so the emails forwarded to her in 2015 could be verified. The explanation for the iPhone footer is that the iPad and the iPhone were linked and when emails were sent on the iPad the iPhone footer appeared.
There has been no real effort made by the Defendant to provide any metadata in relation to the Disputed emails. By contrast, the Claimant has offered access to the Disputed emails in their native format so that the metadata could be checked. The offer was not taken up. Aimee Glynn made contact with Chris Hoyle of Cyfor, a digital forensic company, in April 2017. She was told by him that when an email is forwarded the metadata is stripped out. He suggested that Elaine Glynn should send her the emails as attachments which could then be forensically examined. This was not done.
(d) There is an inherent unlikelihood of Aimee Glynn forwarding business emails relating to the Land to her mother in July 2015 and then deleting both the email received and the sent email. The explanation is that the emails related to her parents’ business. This overlooks the fact that the Defendant’s transaction is said to have been for Aimee Glynn and her company.
(e) The Disputed emails are central to the claim. They were put forward by the Defendant to bolster its case that the Lease and Option are genuine. They have the opposite effect. The Defendant’s case overlooks the obvious fact that email accounts are not device specific and the account holder could have requested the provider to produce the emails in native format. The story about forwarding and re-forwarding, followed by the theft of the iPad is an obvious construct that is untrue. It is clear beyond any doubt the emails have been tampered with and the Defendant’s versions are false. Furthermore, it is inescapable that Aimee Glynn must have been directly or indirectly involved in the process of falsification and knowingly putting forward evidence that is false. It is not possible to judge how far Elaine Glynn was involved in the falsification of the emails but it is clear her account of what was done is untrue.