Court draws adverse inferences from “deliberate destruction” of emails


Christmas movie: Claim dismissed

A High Court has described the double deletion by a witness for the claimant of crucial emails on the eve of the trial of a film financing dispute as a “very serious misdeed”.

Mr Justice Calver said the court could draw a range of adverse inferences from the “deliberate destruction of documents” by the witness from Active Media Services.

It was only in the trial bundle that two emails alerted the defendants to the existence of a Gmail account owned by Mr Quinn, described by the judge as the “main protagonist” on behalf of Active,

Calver J said he had found Mr Quinn to be “evasive and defensive” when giving evidence as a witness, “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, 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 said he deleted the emails without reading them “without thinking through things and in a state of panic” that he had given Mishcon incorrect information.

He told Mishcon what he had done the following day but the emails could not be retrieved.

The court heard in Active Media Services v Burmester, Duncker & Joly and others [2021] EWHC 232 (Comm) that the dispute was over the financing, completion and delivery of the animated Christmas film Elliott: The Littlest Reindeer.

The film was intended to be released in November 2017, but was not actually released until Christmas 2018, with “serious financial consequences” for all concerned.

Calver J said the “real issue” in the case was whether the court should infer that Active knew that the film had not completed and been delivered by August 2017 and whether by its conduct was estopped from bringing a claim under its completion guarantee or had waived that right.

The judge found as a fact that Mr Quinn knew “certainly by November 2017” that the film had not been delivered by that time and that Mr Quinn had agreed to the film’s release moving into 2018.

He rejected his evidence that he “assumed the film had been completed” by the end of August.

“His desire was to exploit the film in 2018 and accordingly he decided not to call upon the completion guarantee, despite knowing that Active could do so.”

The judge said that in his evidence Mr Quinn described deleting “around 10-20 emails” in his Gmail account, without opening any of them, then deleting the contents of his trash folder.

It then emerged that Mishcon had drawn his attention to use of the Gmail account some weeks earlier.

n response, “Mr Quinn apparently said that he did not use the address for business and Mishcon simply left it there without asking Mr. Quinn to check his personal Gmail account; nor, apparently, did they search the disclosed documents to see if there were other emails sent to Mr Quinn’s Gmail address as they ought to have done”.

Calver J said he agreed with counsel for the first and second defendants that “the only reasonable conclusion” was 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”.

The judge said he did not accept Mr Quinn’s “vague assertion” that only 10-20 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.”

Calver J said the fact that documents had been deliberately destroyed and witnesses had not been called who could have given evidence on the presumed contents took this case “a step further forward” than drawing inferences from the mere absence of witnesses.

He said the court could draw adverse inferences both on what the destroyed documents were likely to have shown and “the evidence that the witnesses are likely to have given on the issue in question”.

Calver J said it was only when 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”.

He ruled that Active was barred by the doctrine of waiver by election from arguing that it was entitled to the payment sum under the completion guarantee.

Active was also estopped from exercising its rights under the guarantee, both by reason of waiver by estoppel and estoppel by convention. Calver J further accepted that the guarantor defendants’ defence of acquiescence had been made out.

He dismissed Active’s claims against all the defendants.




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