STRIKING OUT FOR ABUSE OF PROCESS: THE NEED TO ADVISE CLIENTS TO PRESERVE EVIDENCE
An action can be struck out if a party fails to preserve evidence. Matthews –v- Collins is a fatal case where evidence was destroyed by the coroner . The defendant applied to strike out the action as an abuse of process. Here we look at that decision at the wider implications of the duty to advise in relation to the preservation of documents and evidence.
- A failure to preserve evidence can, on occasions, lead to an action being struck out.
- There are cases where fatal actions have been struck out doe to a failure to retain tissue samples.
The decision of Mrs Justice Swift in Matthews –v- Collins  EWHC 2952(QB) relates to a claim brought the family of a man who had died as a result of lung cancer. The claimant’s case was that was due to exposure to asbestos. The widow attended the inquest where the verdict was death due to industrial disease. After the inquest the widow received a letter asking what she wanted to do with the histology samples. She telephoned the Coroner’s Office and asked what was usually done. Upon being told that the samples were usually destroyed she signed the forms which gave authority for disposal of the samples. The widow subsequently instructed solicitors who brought an action against a number of her husband’s former employers
THE APPLICATION TO STRIKE OUT
The defendants made an application under CPR 3 4 (2) (b) arguing that the widow’s conduct which resulted in the destruction of the samples amounted to an abuse of process. The defendants were also critical of the widow’s conduct and stated that the destruction of the samples gave rise to a real risk that a fair trial was not possible.
The judge made clear findings that:
(1) The defendants’ criticisms of the widow were not justified. The suggestion that she might have realised that the samples may be relevant to her claim were unrealistic.
(2) The behaviour of the widow’s solicitors was not unreasonable. They did not know that the Coroner proposed to dispose of the samples.
(3) Despite the destruction of the samples it was perfectly possible for a fair trial to take place.
POINTS TO NOTE
The important point about this case is not that the application failed but that other similar applications have succeeded in the past. The facts were different:
CASES WHICH WERE STRUCK OUT
(1) In Weaver –v- Contract Services Ltd (unreported decision of the Senior Master 3rd September 2009) the claimant’s solicitor, upon being asked by the claimant, stated on several occasions that the retention of tissue samples was not necessary and that the claimant should consent to their being destroyed. The Master regarded this is as “breathtaking” advice. The Master concluded that a fair trial was not possible and the action was struck out.
(2) In Currie –v- Rio Tinto PlC (Master Eastman, 6th October 2010) the defendants were disputing the diagnosis. They asked for a private post mortem examination since the deceased was in Australia and the Coroner would not request one. The family refused and the deceased was cremated. The Master held that this refusal had given rise to a substantial risk that the court would not be able to deal with the case justly and the action was struck out.
CASES NOT STRUCK OUT
In Preston –v- Hurst  EWHC 870 (QB) the action was not struck out because, the judge held, the claimant’s solicitors could not be faulted for failing to appreciate that the pathologist would not retain lung sample tissues. Further there had been a clear diagnosis of asbestosis within the deceased’s lifetime and a fair trial was still possible.
LESSONS TO BE LEARNT
The judge in Matthews has written to the Chief Coroner with a request that he asks all Coroners in industrial disease cases where a claim is pending to recommend that families consult solicitors before consenting to disposal of tissue.
Further it is good practice for solicitors instructed by claimants to inform both their clients and the relevant Coroner’s courts that destruction of histological samples should not take place without confirmation from the solicitors that the samples are not required for the purpose of the claim.
MORE GENERAL IMPORTANCE: THE DUTY OF THE SOLICITOR TO WARN IN RELATION TO DOCUMENTS AND EVIDENCE
This case also highlights the importance of giving advice in relation to the preservation of evidence as a whole in any type of litigation. A solicitor cannot assume that a client will know that documents or evidence has to be preserved. There is a positive duty on a solicitor to inform a client involved in litigation to preserve evidence. As long ago as 1968 Megarry J said:
“What I desire to say is this. In preparing for trial solicitors bear a great responsibility and a heavy burden. Not the least of these burdens is that of discovery. This is of especial weight in a complex case of passing off such as this was. Many litigants (and not least corporate litigants) have little appreciation of the scope of discovery, and the duty of making full disclosure. So often they neither know nor appreciate the requirement that they must search for and disclose to their adversary any document which, in the classic phrase of Brett L.J. in the Peruvian Guano Company case,1 “may fairly lead him to a train of inquiry” which may either advance his own case or damage his opponent’s.
Accordingly, it seems to me necessary for solicitors to take positive steps to ensure that their clients appreciate at an early stage of the litigation, promptly after writ issued, not only the duty of discovery and its width hut also the importance of not destroying documents which might by possibility have to be disclosed. This burden extends, in my judgment, to taking steps to ensure that in any corporate organisation knowledge of this burden is passed on to any who may be affected by it.”
Rockwell Machine Tool Co –v- E.P. Barrus  1 W.L.R. 693