DELIBERATELY DESTROYED DOCUMENTS IN LITIGATION, ADVERSE INFERENCES AND… REINDEERS

In  the judgment today in Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co Kg & Ors [2021] EWHC 232 (Comm)  Mr Justice Calver considered the inferences that should be drawn when he found that a party to litigation had deliberately destroyed relevant documents.

“Appropriately for the time of year, this dispute concerns the financing, completion and delivery of an animated Christmas film entitled ‘Elliot: the Littlest Reindeer‘ (the ‘Film’). Unfortunately, any Christmas Spirit between the parties is, however, in short supply.”

THE CASE

The claimant brought an action under a guarantee following losses it had incurred in the production of a film “Elliot: the Littlest Reindeer”. The action was defended. During the trial it became clear that a witness for the claimant had destroyed emails in a private account, these emails were relevant to the issues being determined.

THE DESTRUCTION OF DOCUMENTS

The judge observed that the conduct by the claimant’s witness meant that this action on a guarantee was far from straightforward.

“In light of this behaviour, one might have had a good deal of sympathy for Active Media Services Inc (“Active”) who invested in the Film and had the benefit of the Completion Guarantee, and in particular for Mr. Quinn, who was the main protagonist on its behalf throughout this dispute. Moreover, it might be supposed that this is a straightforward case of a breach of the Completion Guarantee, leading to the return of Active’s investment made under it. However, I found Mr. Quinn, in giving evidence before me on behalf of Active to be evasive and defensive, frequently procrastinating and not answering the questions put to him. But more than that, just two days before this trial commenced, Mr. Quinn chose to “double delete” relevant emails about this dispute on his personal Gmail account, which he had previously told his solicitors, Mishcon de Reya (“Mishcon”), did not contain documents relevant to this dispute. This was a very serious misdeed and a very serious breach of Active’s disclosure obligations. Mr. Quinn claims that this was a “moment of madness” on his part. I shall address that suggestion in determining what the consequence of his actions should be: the real issue in this case being whether the court should infer that Active, through Mr. Quinn and/or its agents, knew that the Film had not been completed and delivered by 28 August 2017 and whether by its conduct Active is estopped from now bringing its claim under the Completion Guarantee, or waived its right to do so.”

THE DESTRUCTION OF DOCUMENTS IN AN EMAIL ACCOUNT

The judge considered evidence that  electronic documents in a particular email account had been destroyed.

1. 1. I agree with Mr. Cullen QC that the only reasonable conclusion which follows from this disclosure is that Mr Quinn waited to destroy the electronic documents in his personal Gmail account until he knew that the Guarantor Defendants had become aware of them, and that this supports the inference that the destruction was calculated. It is unknown how many documents were destroyed in this way by Mr. Quinn, and I do not accept at face value his vague assertion that only 10-20 such documents were destroyed. I consider it implausible that Mr. Quinn did not look at or read the destroyed documents; I consider that he would have read them and had the documents been irrelevant there would have been no reason to destroy them.

1. 1. Moreover, in his second statement he told the Court that, when he was asked by Mishcon on 2 December 2020 about this, he could not recall ever having sent or received emails from Mr Moring to his Gmail account. Under cross-examination he told the Court that Mishcon’s communication to him on 2 December 2020 came as a “shock” and “took the wind out” of him; and that “I didn’t know that I had them”. This would appear to be untrue, because in fact he had known just 7 weeks earlier (if not before) that he had one of these two Jason Moring emails when Mishcon specifically drew it to his attention, and he must surely have recalled such a “shocking” fact when Mishcon wrote to him about it again 7 weeks later.

1. 1. As Mr. Cullen QC submits, it is likely to have been the case that what panicked Mr. Quinn was that Clintons, solicitors for the Guarantor Defendants, had discovered what he had known (but not disclosed) since at least 15 October 2020, namely that he had used his personal Gmail account for the sending of emails concerning the Film. It was no longer something known only to him (and Mishcon). He therefore double deleted the emails and with the trial upon the parties he must have known that it would be very difficult for the Guarantor Defendants to do much about it at that stage. Of course, had this occurred back in October, it would have been possible for the Guarantor Defendants to seek to interrogate the hard drive of Mr. Quinn’s computer and take other measures to seek to retrieve the documents.

1. 1. It is not an answer to this point for Active to say (as it does in its written closing, paragraph 97(iii)) that “there was nothing whatsoever to stop Mr. Quinn deleting emails that he did not want to produce and remaining quiet about it. The Court and the Defendant would have been none the wiser. The absence of the two [emails] would have been readily explicable on the basis that these must have been deleted at some earlier date.” Once Clintons had spotted the use of his personal email address for documents concerning the Film, the cat was out of the bag. They demanded a full response. Until that point Mr. Quinn appears to have assumed that he had successfully avoided anybody looking at the documents on his personal Gmail account concerning the Film: if anyone spotted {D5/85} he could say that that was a one-off email wrongly sent to his personal account. It is true that he might have adopted the dishonest course of pretending that he had deleted them at an earlier stage (whether that lie would have successfully avoided detection is unknown), but instead he chose to adopt the dishonest course of double-deleting relevant emails and coming up with the implausible story that he was panicked into doing so in the mistaken belief that he had previously made a witness statement (“Quinn 1“) saying that he did not use his Gmail account for business purposes.

1. 1. Moreover, had Mr. Quinn or Mishcon told Clintons back in October 2020 that {D5/85} had been found in Mr. Quinn’s Gmail inbox, that would have given Clintons time to seek specific disclosure from Active; to conduct a forensic analysis of Mr. Quinn’s computer; and to seek disclosure from in particular Mr. Sears, Mr. Jason Moring and Mr Steinbeck (whom Mr. Quinn said in evidence he met regularly during the relevant period and that “we had conversations throughout and throughout“). Mr. Quinn was “a primary contact” of Mr. Sears according to Mr. Quinn’s own evidence. Indeed, I find that he was the primary contact. It was incumbent upon Active then to call Mr. Sears (with whom it had an ongoing professional and friendly relationship) and Mr. Steinbeck to give evidence, if it did not wish the Court to draw adverse inferences from their absence as witnesses. However, because Mr. Quinn (and Mishcon) did not reveal to Clintons in October 2020 or at all the discovery of {D5/85}and the fact that Mr. Quinn had a personal Gmail account to which emails concerning the Film were sent, Active avoided all of these consequences. I emphasise that I do not of course suggest that Mishcon, rather than Mr. Quinn, did so deliberately.

1. 1. Moreover, it cannot be true that Mr. Quinn was concerned about having said something in Quinn 1 about his personal email account not being used for business purposes, and that deletion would allow him to mislead everyone into believing he had given proper disclosure (even if that were somehow a good excuse). He had known about at least one email being sent to his personal account on 15 October 2020, and he finalised Quinn 1 on 29 October 2020. So, if Quinn 1 had said that his personal account did not receive work emails, he would already have known at that time that that was not truthful.

1. 1. Furthermore, as foreshadowed above, no written exchanges between Mr Quinn, Mishcon and Mr Sears have been disclosed by Active, even though Mr Quinn deployed those communications in his second witness statement in a bid to excuse his behaviour. In view of the seriousness of the situation they ought to have been. There have been two supporting statements from Ms Bridge (the second the day after the trial concluded at the Court’s prompting) but none from Mr Sears (who it appears has also deleted the key emails). The Court only has brief hearsay evidence about Mr Sears’ searches for copies of the emails, from the very person who destroyed them. That is as Mr. Cullen QC rightly states, most unsatisfactory.

1. 1. Despite Mishcon knowing from 15 October 2020 that Mr Quinn had at least one disclosable email in his personal account, (a) it apparently took Mr Quinn’s word for it (from his memory alone) that there was only one such email; (b) it did not arrange any searches at all, even though the Guarantor Defendants were already concerned about its limited disclosure (and had obtained an order for further disclosure just days earlier, on 9 October 2020); (c) it did not ensure that Active disclosed the one email that it knew existed in Mr Quinn’s control, as it should have done; (d) it did not search the documents on its disclosure platform for Mr Quinn’s Gmail address, which would have revealed the second email from Mr Moring and raised doubts about Mr. Quinn’s assurance; and (e) no efforts appear to have been made to retrieve relevant documents from Mr. Sears. This is all highly regrettable.

1. 1. Given the seriousness of these events, once Clintons alerted Active and Mishcon to the existence of the two emails, Active should have made every possible effort to recover the emails and Mishcon should have done its best to ensure that it did so. But all that has occurred is that there has apparently been (a) a fruitless search of the non-deleted emails by Mishcon; (b) informal enquiries of Google by Active’s own IT staff; and (c) informal enquiries of Mr Sears who (according to Mr Quinn’s hearsay evidence) had also apparently deleted the emails, with no reason given. Mr. Quinn did not ask Mr. Sears to see if he could retrieve his deleted emails. This is wholly insufficient. Furthermore, the second and third of these steps seem to have been conducted by Mr Quinn personally rather than by Mishcon, as ought to have occurred in all the circumstances.

1. 1. The unsatisfactory circumstances in which these documents came to be destroyed are compounded by the following facts:

(1) The Court has heard no evidence from anyone directly involved in the dealings between DDI, M3 and Active, other than Mr. Quinn himself. It heard no evidence from Ron and Jason Moring, despite Mr. Moring appearing before the Court throughout the trial and even making very brief submissions. I recognise that in the case of Jason and Ron Moring that may have been because they were seeking to avoid the spotlight falling upon their questionable behaviour throughout this dispute.

(2) However, the Court also heard no evidence from Mike Sears or Michael Emerson of M3. This is despite the fact that, as Mr. Quinn accepted in cross examination, Active still has a professional relationship with M3 and he is clearly on friendly terms with Mike Sears. Again, if they had helpful evidence to give on behalf of Active, it seems there was no reason why they should not have been called, and particularly Mr. Sears whom Active knew to be intimately involved in the critical events with which this action is concerned.

(3) Furthermore, in view of Mr. Quinn’s deletion of emails, as I have explained above, it was incumbent upon Active to call Mr. Sears and seek disclosure of his documents if it did not wish adverse inferences to be drawn by the Court. Mr. Sears played an absolutely central role in the relevant events for Active; Active knew that it was being alleged that he acted as its Agent; and Active knew that an estoppel/waiver/election case (“the estoppel case”) was being advanced against it, which meant that Active was required to be open and transparent as to the state of its knowledge as to the delays in completion and delivery of the Film, which would no doubt be laid bare by the knowledge of, and internal communications between, Mr. Quinn, Mr. Sears, Mr. Moring and Mr Steinbeck. But it chose to remain silent about these matters, not to call any of these witnesses (apart from Mr. Quinn) to meet the estoppel case, and to destroy relevant emails.

(4) This is particularly significant in circumstances where, as I have explained above, there appear to be critical gaps in Active’s disclosed documents at key moments in the chronology of events, in particular in relation to communications between Mr. Quinn, Gary Steinbeck, Mike Sears and Jason Moring.

(5) In paragraphs 85-89 of her witness statement on behalf of Active dated 2 October 2020, Ms Eleanor Dixie of Mishcon denied that Active had a right to possession or to inspect or take copies of documents held by Mr. Sears or M3 for the purposes of disclosure. This was, no doubt, on Active’s instructions. However, contrary to the impression thereby given, it is apparent from Mr. Quinn’s second witness statement that Mr. Sears was only a phone call away and very willing to assist Active. He was asked to check his emails by Mr. Quinn (which he had sent to Mr. Quinn’s personal account) and he did so immediately. There was no reason why Mr. Quinn could not have asked Mr. Sears to send Active relevant emails sent to and from him from his business account but it chose not to do so. Had it done so, there is every reason to believe that Mr. Sears would have complied with that request.

(6) Active vigorously resisted Mr. Gary Steinbeck being added as a custodian for the purposes of its disclosure, informing the Court that he was unlikely to have sent or received emails that were not copied to other custodians. His email account was therefore not searched. Active also chose not to call him as a witness, despite Mr. Quinn accepting in cross-examination that he was in regular contact with M3 regarding issues around funding and payment, as the email referred to in paragraph 101 above suggests. In consequence any exchanges between M3 and Mr. Steinbeck concerning matters such as Active’s knowledge of delays in the delivery of the Film have not been disclosed.

(7) Indeed, in cross examination Mr. Quinn revealed that Mike Sears had separately been “reaching out to finance and to legal“. “Finance” was Gary Steinbeck and his team; “Legal” was Terry Trantina and his team. Despite this, and despite the fact that, as can be seen from the foregoing, Mr. Trantina was centrally involved in Active’s decision-making concerning what it should do about the delays in the production of the Film and its rights under the Completion Guarantee, Active chose not to call him as a witness. He could have given evidence; he signed Active’s disclosure statements and was present (virtually) throughout the trial. Of course, some issues of privilege would have arisen with Mr. Trantina giving evidence; but they ought not to have prevented him from giving evidence on certain critical points, particularly if Active wished to dispel any adverse inferences which the Court was likely to draw from the destruction of documents and the failure to call key witnesses.

THE INFERENCES THAT THE COURT SHOULD DRAW

The judge considered whether the court should draw adverse inferences from the absent witnesses and the deliberate destruction of emails.

What are the consequences of Mr. Quinn’s deliberate destruction of the documents and Active’s failure to call relevant witnesses?

…

1. 1. I find that the destruction of the documents was deliberate, and accordingly the Court needs next to consider the consequences of Mr. Quinn’s deliberate destruction of the documents and Active’s failure to call relevant witnesses.

1. 1. The Guarantor Defendants say that had the scale of Active’s manipulation of the Court process come to light earlier, the Guarantor Defendants would have applied to strike out the claim. They argue that a litigant who has pursued proceedings with the object of preventing a fair trial “has forfeited his right to take part in a trial”, citing Hollander on Documentary Evidence, (13^th Ed), at 11-15 and 11-16. As it happens, the misconduct was only laid bare moments from the end of the trial, after the Court had heard the evidence and closing submissions and so the Guarantor Defendants suggest that the Court proceeds to a substantive determination of the dispute but draws adverse inferences against Active.

1. 1. That means, they say, that the Court should draw the strongest possible inferences about the contents of the destroyed evidence. As stated in The Ophelia [1916] 2 AC 206, PC at 229-230, “the strongest possible presumption arises that if it had been produced [the documents] would have told against [the destroyer]”. Deliberate destruction, creating an evidential void, is “wholly inexcusable”; the Court should refuse to give the destroyer the benefit of any doubt or draw any inference in its favour: Hollander on Documentary Evidence (13th ed.), 11-23 to 11-27.

1. 1. In his impressive closing submissions, Mr. Cullen QC argues that the justification for denying Active the benefit of the doubt has special force in this case, given that (1) Active’s case is itself based on the existence of gaps in the documentation (namely the absence of documents in which Active approved of the delayed delivery); (2) the destroyed documents should have been disclosed earlier, and were not disclosed (apparently because Active misled its solicitors about the use of Mr Quinn’s Gmail account, despite having been presented with an email on 15 October 2020 proving that Mr Moring had emailed it); (3) Mr Quinn was aware of Active’s duty to preserve documents; (4) the destruction was cynical, deliberate and on the eve of trial, and only when Active learned that the Guarantor Defendants were aware of the emails; and (5) Active was not forthcoming about the misconduct, even when it gave two witness statements (Quinn 2 and Bridge 1) purporting to come clean; it concealed the detail until the day after the trial finished (in Bridge 2).

1. He invites the Court to draw the following inferences, namely that the deleted documents included (a) emails in which Mr Quinn agreed to the manner in which delivery was given in August and September 2017; (b) emails in which Mr Quinn endorsed DDI’s acceptance of the Film, in full knowledge that this would discharge the Guarantor Defendants’ liability; and (c) emails in which Active communicated with M3, gave instructions to M3, and treated M3 as its agent in all respects. He submits that those inferences are consistent with the totality of the non-destroyed evidence.

Deliberate destruction of documents

1. 1. This is, however, not merely a case about inferences to be drawn from the absence of relevant witnesses. It is a case where the Claimant is guilty of the deliberate destruction of relevant documents, knowing that it was under a legal duty at the time to preserve them.

1. 1. The starting point in a case of deliberate destruction of documents is that if a fair trial of the action cannot then take place, the destroying party’s case should be struck out. And of course, the later that the destruction take place, the worse the position; it may make a fair trial of the action less likely. The very late destruction of the documents by Mr. Quinn in this case meant that the Guarantor Defendants had little or no time properly to investigate the position.

1. 1. As the Vice-Chancellor stated in Douglas v Hello! [2003] EWHC 55 at [90]:

“The issues are whether the rules have been transgressed, if so whether a fair trial is achievable and if not what to do about it. See Logicrose Ltd v Southend United Football Club Ltd (The Times 5th March 1988) and Arrow Nominees Inc v Blackledge [2001] BCC 591 para 54 where Chadwick LJ, with whom Roch LJ agreed, said: “I adopt, as a general principle, the observations of Mr. Justice Millett in Logicrose Ltd v Southend United football Club Limited (The Times, 5 March 1988) that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the Court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules – even if such disobedience amounts to contempt for or defiance of the court – if that object is ultimately secured by (for example) the late production of a document which has been withheld. But where a litigant’s conduct puts the fairness of the trial in jeopardy, where it is such that any judgment in favour of the litigant would have to be regarded as unsafe, or where it amounts to such an abuse of the process of the court as to render further proceedings unsatisfactory and to prevent the court from doing justice, the court is entitled – indeed, I would hold bound – to refuse to allow that litigant to take further part in the proceedings and (where appropriate) to determine the proceedings against him. The reason, as it seems to me, is that it is no part of the court’s function to proceed to trial if to do so would give rise to a substantial risk of injustice. The function of the court is to do justice between the parties; not to allow its process to be used as a means of achieving injustice. A litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial has forfeited his right to take part in a trial. His object is inimical to the process which he purports to invoke.”

1. 1. As is stated in Hollander, Documentary Evidence (13^th Edn), there are only a limited number of cases where applications have been made to strike out proceedings for concealment or destruction of documents. In Logicrose v Southend United Football Club [1988] 132 S.J. 1591, the responsible director of the claimants was alleged to have deliberately suppressed a crucial document and for a time successfully concealed its existence from the court. Millett J did not find the allegation proved, but said that if it had been, it might have given rise to a contempt sanction but should not lead to the action being struck out unless the failure rendered it impossible to conduct a fair trial.

1. 1. In Dadourian Group v Simms [2009] EWCA Civ 169 Arden LJ stated at [233]:

” …[A] litigant who has demonstrated that he is determined to pursue proceedings with the object of preventing a fair trial is [not] to be taken to have forfeited his right to a fair trial in every case. …[if] the litigant’s conduct ha[s] put the fairness of the trial in jeopardy … the court’s power to strike out the proceedings was not a penalty for disobedience with the rules.”

1. 1. The Court must always consider, therefore, whether a fair trial is possible and to this end have regard to the defaulting party’s ECHR art.6 rights of access to the Court, and whether the remedy of a strike out would be proportionate and fair in all the circumstances of the case (which is much less likely in a case where the trial has concluded and the Court is in a position to assess the effect of the destruction of the documents and/or failure to call relevant witnesses), or whether some other remedy will safeguard the position of the innocent party.

1. 1. Hollander suggests in paragraph 11-16 that “where the defaulting party has been less than candid about the destruction exercise, the court may consider it cannot be sure exactly how widespread the destruction has been, and what its effect will be, and thus may find it more difficult to reach a conclusion that a fair trial is still possible.” I respectfully agree with that general sentiment but in a case where the trial has concluded the position is, as I explain above, somewhat different. Indeed, it is for this reason no doubt that as Hollander goes on to state: “it would be a very rare case in which, at the end of a trial, it would be appropriate for a judge to strike out a case rather than dismiss it in a judgment on the merits in the usual way“. I agree.

1. 1. If a fair trial is still possible, or if (as here) the trial has concluded, the next question is how should the Court approach the issue of the deliberate destruction of documents and a deliberate void of evidence. I agree with the approach adopted in Earles v Barclays Bank [2009] EWHC 2500, which also deals with the failure to call relevant witnesses, where HHJ Simon Brown QC stated that:

“28… in this jurisdiction as in Australia, there is no duty to preserve documents prior to the commencement of proceedings: British American Tobacco Australia Services Limited v. Cowell [2002] V.S.C.A. 197, a decision approved in this country by Morritt V.C. in Douglas v. Hello [2003] EWHC 55 at [86]…

29. After the commencement of proceedings the situation is radically different. In Woods v. Martins Bank Ltd [1959] 1 Q.B. 55 at 60, Salmon J. said “It cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court to make sure, as far as possible, that no relevant documents have been omitted from their client’s list”.

30. In the case of documents not preserved after the commencement of proceedings then the defaulting party risk “adverse inferences” being drawn for such “spoliation”: Infabricks Ltd v. Jaytex Ltd [1985] FSR 75.

31. In cases where there is a deliberate void of evidence, such negativity can be used as a weapon in adversarial litigation to fill the evidential gap and so establish a positive case. In British Railways Board v. Herrington [1972] 1 AER 786, Lord Diplock stated:

“The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold.”

1. 1. It follows that if there is no evidence on a particular point, the Court could rely on the inferences drawn from the destruction of documents or the failure to call relevant witnesses to provide evidence which is otherwise absent.

1. 1. Indeed, in my judgment, the fact that in the present case both (i) documents have been deliberately destroyed and (ii) witnesses have not been called by the guilty party whose evidence would likely bear upon the (presumed) contents of the destroyed documents, takes this case a step further forward than in the case of drawing inferences from the mere absence of witnesses. Although it might rarely arise in practice (and it does not arise in this case as there is other material to support the adverse inferences to be drawn), I consider that the court is entitled in such a case, depending upon the particular facts, to draw adverse inferences as to (i) what the destroyed documents are likely to have shown on the issue on question, and (ii) the evidence that the witnesses are likely to have given on the issue in question but which was withheld, without the need for some other supporting evidence being adduced by the innocent party on that issue. The two factors combined make the case for the drawing of an adverse inference without other supporting evidence an extremely strong one, at least so far as establishing a defence to a claim is concerned.

Analysis

1. 1. I consider that the Court should draw inferences adverse to Active from the combined effect of (a) the deliberate destruction of documents by Mr. Quinn immediately before the trial began (and on the Court’s reading day); (b) the absence of documentation passing between Active, Mike Sears and Jason Moring, and (c) Active’s failure (i) to call any of the M3 witnesses, and in particular Mr. Sears and Mr Jason Moring; (ii) to obtain and disclose the emails/documents of any of the M3 witnesses; (iii) to call Mr. Steinbeck or search his emails/documents; (iv) to call Mr. Trantina.

1. 1. The inferences which I consider it is appropriate for the Court to draw are that the destroyed documents are likely to have shown, and/or the witnesses are likely to have said:

(1) That Active made clear to M3 (Mr. Sears and/or Mr. Moring) that it was content for M3 to act as its agent in dealing with LRP, EFB and DDI in all relevant respects, and in particular in receiving and passing on, on its behalf, all relevant information about the Film;

(2) That Mr. Quinn made clear to M3 (Mr. Sears and/or Mr. Moring) that he was content to agree to a delayed release of the Film into 2018 and M3 could deal with LRP and EFB on that basis;

(3) That Mr. Quinn knew by November 2017 (if not before) that the asterisked Delivery Materials had not in fact been delivered by 31 August 2017;

(4) That Mr. Quinn made clear to M3 (Mr. Sears and/or Mr. Moring) that he was content to agree to (or did not object to) the manner in which delivery was said to have been made to DDI by 31 August 2017 and to DDI’s acceptance of the same and M3 could deal with LRP and EFB on that basis;

(5) That Active chose not to call on the bond after the date of 30 August passed, but rather supported the exploitation of the Film into 2018 with additional funding from Telefilm and/or a bridging loan, and M3 could deal with LRP and EFB on that basis;

(6) That M3 did pass on to Active all material information about the completion and delivery of the Film in both 2017 and 2018.

1. I also consider that those inferences are consistent with, and supported by, the non-destroyed documentary evidence discussed above. Mr. Quinn knew (by November 2017 at the latest) and M3 knew (in September 2017) that the 30/31 August 2017 deadline for completion and delivery of the Film had been passed and they knew that the Film had not been completed and delivered by that date. They nonetheless chose to support the continued work on the delayed Film with a view to it being released and exploited in 2018 (by going along with the deemed delivery of the Film). It was only once it became apparent that Active was not going to be compensated for the delay in the manner that it desired that it belatedly decided to call upon the guarantee.