5. What happens if a party deliberately destroys discoverable documents?

Duty to preserve and the solicitor’s role

As soon as litigation is contemplated, parties and their legal representatives must take positive steps to preserve discoverable documents. This includes ensuring that electronic documents are not deleted under standard document retention policies.

Solicitors owe an independent duty to the court to investigate their client's position carefully and ensure full and proper disclosure. If a client insists on providing an imperfect list or withholding documents, the solicitor must withdraw from the case. Failure to fulfill these duties can lead to the solicitor being ordered to personally pay costs.

Sanctions for destruction

The deliberate destruction or disposal of discoverable documents is viewed as a serious obstruction of justice and can lead to severe judicial sanctions. Under Order 24, rule 16 of the Rules of the High Court (Cap. 4A) or the Rules of the District Court (Cap. 336H), the court possesses broad discretionary authority to impose severe legal and evidential sanctions.

(i) Striking out the action or defence

The court may dismiss a plaintiff's claim or strike out a defendant’s defence and enter judgment against the defaulting party.

(ii) Adverse inferences

The court may presume the worst against the defaulting party regarding the contents and effect of the missing material. For example, if a defendant fails to preserve documents that would have affected the calculation of damages, the court may presume that those documents would have supported the plaintiff's higher claim.

(iii) Committal for contempt

Failing to comply with a court order for the discovery or production of documents makes a party liable for committal for contempt of court.

(iv) Costs sanctions

Defaulting parties are frequently ordered to pay the costs wasted or incurred by the other party due to the missing evidence.

(v) Order for a new trial

If proper discovery was not made during the original proceedings because documents were withheld or destroyed, the court may order a new trial.