When a harmless note becomes valuable evidence

If a dispute with a client or supplier is on the horizon, then businesses should be circumspect about the documents they amend or create, advises solicitor-advocate Matthew Hearsum.

Under the Civil Procedure Rules 1998, which govern civil claims in the County Court and High Court, each party is under an obligation to preserve and disclose to the other party all documents that are relevant to the case, even if they help the other party.

A “document” is defined as “anything in which information of any description is recorded”. This is a very wide definition and will include everything from e-mails (both electronic and printed) to post-it notes. It is not limited to one copy of a document, and if a copy of a document contains a modification, obliteration or other marking or feature then it wil be treated as a separate document from the original, and should also be disclosed. Let’s use an example.

Fjord Plc is a car manufacturer that produces reasonably priced runabout cars that are popular with students and young professionals. They start selling a new model called the “Concentrate” which comes in 1.2 and 2.0 litre engines.

A few months later some of Fjord’s customers complain that the cars are not as quick as they had hoped and Fjord agree to run some tests on the cars and report back to the customers.

Two copies of the test reports (one for Fjord and one for the customer) are sent to Bob Jones, Fjord’s sales manager. Bob forwards one copy to the customer, and sends the other to the managing director, Henry Fjord.

In the corner Bob writes “The cars are fine – the problem is we took them for a test-drive in a 2 litre, but we told them it was the 1.2 litre  model because they weren’t selling and  we needed to shift them. Let’s ignore it and see if they push the issue”.

That copy of the test report now contains a very damaging admission that Fjord deliberately misrepresented the speed of the 1.2 litre model of the Concentrate so they could sell them. If any of the customers decide to take legal action against Fjord, then they would have to send the customer a copy of the test report with Bob’s rather silly admission written on the front of it.

The moral of the story is that if you are dealing with unhappy customers or suppliers you should be circumspect about what you commit to writing. What may seem a harmless note may end up being very valuable evidence to a potential opponent.

If you find yourself in a tricky situation like Bob and Fjord, then please do get in touch to see if we can help.

Matthew is a solicitor-advocate specializing in Dispute Resolution and can be contacted on 01483 215 034 or by email [email protected]

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