Rawding v Seaga UK Ltd

In proceedings before his Honour Judge Halbert at the Chester County Court the Appellant, Jason Rawding, was found to have provided to the Respondent, Seaga UK Limited, “Seaga”, a personal guarantee for the debts of a company, Apollo Vending Services Limited, “Apollo,” of which he was, for a period, the majority shareholder. In separate proceedings between Seaga and Apollo, tried together with the action between Seaga and Mr Rawding, Seaga established that it was owed £233,158 by Apollo. Judgment was given in that sum on 2 April 2014 against both Mr Rawding and Apollo jointly and severally. Mr Rawding was ordered to pay Seaga its costs of both actions, which are said to be of the order of £370,000, and are bound to be considerable having regard to the circumstance that the trial of the two actions occupied twenty three days and involved much disputed evidence.

Apollo is in liquidation and there is no appeal against the judge’s findings as to its liability.

Mr Rawding appeals against the judge’s finding that he furnished to Seaga a guarantee in respect of the indebtedness of Apollo. Whether he had furnished such a guarantee was the sole issue in the action brought against him by Seaga. The guarantee was alleged by Seaga and found by the judge to have been given in an exchange of four emails between Mr Rawding and Mr Steven Chesney, who owns and controls the group of companies of which Seaga is a part. Mr Rawding has consistently denied that he either sent the two emails attributed to him or received the two attributed to Mr Chesney.

In support of his appeal Mr Rawding seeks permission to introduce fresh evidence which was not put before the court below. That evidence consists principally of a report by a data recovery expert, Andrew Bel-Dean, dated 7 May 2014, although that is now supplemented by a second report from Mr Bel-Dean dated 30 January 2015. The gist of that evidence is that examination of backup tapes generated by the server device through which Mr Rawding sent and received emails demonstrates, subject to one caveat, that the relevant emails were neither sent nor received, as the case might be, by Mr Rawding. The caveat is that the emails could have been deleted in a manner which the examination of the backup tapes would not have detected if that deletion exercise had been carried out between 6.42pm and 8.00pm on 10 July 2006. However that could not have been done by the user of the email account using email client software such as Microsoft Outlook. The exercise would require access to the Microsoft Exchange Server software managing a number of different email accounts. Moreover the exercise in question is both complicated and time-consuming. Mr Bel-Dean would not expect it to be possible for an average, or even above average, IT engineer in a non-specialist company without specialist technical IT knowledge to carry out such a task. It would he suggests require someone with appropriate Microsoft qualifications, such as those he himself holds, and he estimates that the task would take him personally about an hour to perform.

Taken at face value, the new evidence shows it to be implausible, to put it no higher, that the four emails were sent or received, as the case might be, by Mr Rawding. Apart from the oral, highly contested, evidence of Mr Chesney and his personal assistant as to the circumstances and manner in which the emails purportedly emanating from him were sent, Seaga relies only upon paper copies of the four emails, having disclosed no hardware or backup material from which they can be reproduced electronically. It is common ground that it would be “childishly easy” to forge those paper copies with a word processor and leave no trace that they were not authentic.

It is unnecessary for present purposes to explain or to examine the reasons why Seaga has only ever produced paper copies of the four emails upon which it relies, although this is a matter which as I shall later explain may require to be revisited. The four copies are reproduced on two sheets of paper. The first sheet of paper reproduces an email apparently sent by Mr Chesney to Mr Rawding at 3.17pm on 5 July 2006, and an apparent response from Mr Rawding to Mr Chesney at 11.42pm on 6 July 2006. The second sheet of paper reproduces an email apparently sent by Mr Chesney to Mr Rawding at 8.55am on 10 July 2006, and an apparent response from Mr Rawding at 6.42pm on the same day. I am not sure that the evidence at trial established precisely by whom or in what circumstances these two pieces of paper were generated in this form, although the case seems to be that it was done either by Mr Chesney or by his personal assistant Stacy Fernstaedt, both of whom the judge regarded as impressive witnesses. It was certainly the evidence of Stacy Fernstaedt that she had typed the two emails from Mr Chesney to Mr Rawding and that she had discussed with Mr Chesney on 10 July 2006 the content of the email sent by Mr Rawding on 6 July 2006.

The trading relationship between Seaga and Apollo began in December 2004. It concerned the distribution within the UK of vending machines. It was contentious almost from the outset. In February 2007 Seaga terminated the agreement. There followed a dispute in which each side claimed that the other owed it money.

The first allegation that Mr Rawding had guaranteed Apollo’s debts came in Seaga’s solicitors’ letter of 30 July 2007. That allegation was immediately denied. By letter of 15 August 2007 Apollo’s solicitors asked Seaga’s solicitors to forward a copy of the document relied upon. On 22 August 2007 Seaga’s solicitors sent a copy of the first sheet of paper to which I have referred. They also asked Apollo’s solicitors if they had authority to accept service of proceedings on behalf of both Apollo and Mr Rawding. Mr Rawding immediately denied the authenticity of the copy email. Apollo’s solicitors advised Seaga’s solicitors that a forensic analysis of Apollo’s email system had been commissioned and remarked that it did appear remarkable that during an exchange of acerbic correspondence between the parties in April 2007 Seaga had never once made reference to the alleged personal guarantee given by Mr Rawding.

As at 2007 Seaga’s computer hardware was intact and in addition, so it would seem, Seaga retained electronic records in the shape of backup tapes.

In November 2008 Seaga commenced proceedings against Apollo alone. Disclosure was given by Seaga on 23 July 2009. The first sheet of paper was disclosed, but not in electronic form.

On 24 March 2011 Seaga issued proceedings against Mr Rawding. The Particulars of Claim alleged for the first time that there had been a second exchange of emails on 10 July 2006.

Seaga asserts that its server suffered a major crash on 15 April 2011 as a result of which it became unusable. It also asserts that pursuant to United States IRS (Internal Revenue Service) requirements both it and associated backup material was thereafter scrapped before the end of 2011. There is as I understand it no evidence of consideration having then been given to Seaga’s disclosure obligations in the English litigation, still less of consideration having been given to how best Seaga could set about proof of receipt and sending of the relevant emails.

On 19 May 2011 Mr Rawding served his Defence. He denied sending or receiving the relevant emails, and denied the authenticity of the copy emails attached to the Particulars of Claim in the shape of the sheets of paper.

It is a fair observation by Mr Mark Vanhegan QC for Mr Rawding that at all times until some unspecified date between 15 April and 31 December 2011 Seaga had it in its power, assuming the emails to have been sent and received, conclusively so to prove by reliance upon computer hardware and electronic records. Mr Rawding had the more difficult task of proving a negative. However, it would seem that Apollo’s hardware had also become unavailable. Either it had been scrapped or, in one case, a server which had been borrowed from an associated company had been returned to it, at its request, in 2007, and then reformatted. The judge was rightly critical of the fact that the continued existence of this server did not emerge until the third week of the trial, but he acknowledged that whether any useful data could have been recovered from it following reformatting remained uncertain. Mr Bel-Dean has subsequently examined the surviving server. It is his evidence that the reformatting process was so destructive that it is no longer possible to restore sufficient amounts of data from this device to enable useful conclusions to be drawn.

On 16 August 2011 at a Case Management Conference conducted by telephone Judge Halbert directed that:-

“The parties are to instruct on a joint basis a computer expert to report on the authenticity of the disputed emails in relation to the guarantee claim. The expert is to be identified and joint instructions sent by 2 September 2011. The expert is to be given access to any computer he requests from any of the parties. The expert’s report is to be served simultaneously on all parties by 21st October 2011. Thereafter, any party may ask questions by 4th November 2011 and the expert is to reply to the questions by 18th November 2011. Questions and replies to be mutually disclosed.”

It would seem that the appointment of a single joint expert was proposed by the judge, but neither party opposed it.

Professor Peter Sommer was appointed to be the single joint expert. Mr Rawding has no expertise in computers and was dependent upon the IT support staff employed by Apollo at the relevant time to respond to Professor Sommer’s enquiries as to the availability of hardware or electronic tapes from which useful information could be derived. The IT support staff comprised Mr Stinson, Mr Cousans and Mr Silver. All three gave evidence at the trial. The judge regarded all of them as obviously truthful witnesses and recorded that the contrary was not suggested. In answer to the question:-

“Given the period over which the questioned emails are said to have been sent and received, what back-ups have been specifically retained for the period June and July 2006?”

Mr Silver and Mr Stinson replied :-

“None although there are PST files available from the Defendant’s account.”

PST is an acronym for “Personal Storage Table.”

The answer concerning backup tapes needs to be placed in context. In his Third Witness Statement, made on 7 May 2014, Mr Stinson says this:-

“15.

On 29^th November 2011, Jason emailed myself and Simon Silver to say that Professor Sommer had been appointed as court expert, and that a technically oriented questionnaire would need to be completed. As Jason had no technical knowledge, he asked to rely on my and Simon Silver’s detailed knowledge to answer all of the requisite technical information.

16.

Prior to answering the questionnaire, Simon and I requested permission to speak to the expert in order to request clarification as to his questions. A telephone call was arranged involving myself, Simon Silver and Professor Sommer. This took place on 5^th January 2012. The three of us discussed all the technical aspects of the questionnaire.

17.

My recollection is that on the call with Professor Sommer is that he wanted to avoid unnecessary costs and a wasted journey to our location if there was nothing to be gained by a face-to-face meeting. We collectively agreed that the best course of action was for me, Simon, and Rick to investigate the setup at the time and provide any documentation or files directly to him to review.

18.

To the best of my recollection, we explained to Professor Sommer exactly what we had in terms of hardware. We discussed with Professor Sommer and separately at length with Simon and Rick that we could not have any data covering the period on back up tapes for multiple reasons. We told Professor Sommer that the server had been re-installed.

19.

There was also discussion about back up tapes. We were aware of the existence of a number of back up tapes. They had not been stored in any particular order and were scattered everywhere. They were not properly labelled. They were generally just labelled with a day of the week from Monday to Friday.

20.

We also had no means of recovering any information from the back up tapes. We didn’t have the hardware to restore the tapes that we did have. Also the tapes that we did have had been in use for a significant period of time. Our time back up schedule would mean that any tapes would only hold a back up for a maximum of 6 days before overwritten by the following week’s data. For any tapes in existence in mid-2006, this would have meant at least 50 overwrites even by mid-2007 when the first disputed email appeared. By the time of the second disputed email appearing in March 2011 to coincide with the commencement of this legal action the likelihood of any tape-based data seemed impossible.

21.

The idea of any data tapes being in any way useful did not occur to any of us, including Professor Sommer, and I recall that there was a consensus that any old tapes were irrelevant.

22.

With assistance from Simon Silver, I compiled the answers to this questionnaire. We answered the questionnaire as thoroughly as possible.

23.

Having re-read the reply given to question 4 in Professor Sommer’s questionnaire, I can see that we stated that no back ups had been retained for the period June and July 2006 although there were .PST files available. My recollection is that, in our conversation with Professor Sommer, he advised that the only information he wanted from us was a copy of the .PST files due to the fact that we had no specific back ups for June and July 2006 as explained above. In stating that there were no back up tapes available, I believed this to be the case in the sense that there were no back up tapes available for June and July 2006 that would contain any relevant information.”

This is of course untested evidence. It is however inherently credible.

Professor Sommer produced his report on 20 March 2012. He summarised his conclusions at the outset:-

“Summary

This single joint expert report was ordered to test, using the available technical computer evidence, the allegation made by the Claimant but denied by the Defendant that certain e-mails were sent and exchanged during July 2006.

Upon enquiry it turns out that none of the original computer hardware components on which these e-mails may have been originated, received or stored are any longer in existence. This absence has limited the amount of digital forensic enquiry that could be made.

Neither of the parties had in place a formal document retention policy which extended to the preservation of e-mails to a forensic standard.

The Claimant produces a series of printouts which show no obvious sign of manipulation. The printouts are informal and not the result of an automated process. Forgery would be trivially easy to accomplish and would leave no trace. The Defendant produces “PST” files which have been created by the e-mail program Microsoft Outlook. They contain no trace of the alleged e-mails; however within the Outlook program it is possible selectively to delete e-mails while retaining others. In the circumstances there would be no trace that this had occurred.

The report describes in detail the process of examination that I have carried out. Some of the detail may assist the court in resolving the matter but because of the paucity of reliable digital material it will also have to rely extensively on other forms of evidence.”

Professor Sommer’s conclusion as to the usefulness of the PST files coincides with evidence given by Mr Stinson, both in a Witness Statement before trial and in oral evidence at trial. In the former Mr Stinson said this:-

“I believe… that the PST files copied by Richard Cousans and supplied to the expert Professor Sommer represent all the emails sent and received by the Defendant [Mr Rawding] during the period 4 July 2006 - 12 July 2006 unless emails have been deleted from the inbox or sent box and subsequently deleted from the deleted items box. Such emails would not be included in the PST files.”

As to this Professor Sommer comments, at paragraph 48 of his report:-

“Because the original equipment is no longer available I am unable to verify this information but I can say that this arrangement is entirely normal and commonplace.”

As to Mr Stinson’s evidence at trial, the judge records, at paragraph 6.13 of his judgment:-

“In answer to a question from me, he did confirm that if, after the disputed messages had been received and sent they had been deleted and the recycle bin emptied or the items also deleted there, they would not have appeared in the PST files. They would have disappeared without trace.”

In the result Professor Sommer’s evidence was, as the judge recorded, inconclusive. The judge proceeded to resolve the issue of the authenticity of the emails by a familiar process of assessing the respective credibility of the witnesses and considering the inherent probability of the suggestion that the emails purportedly sent by Mr Rawding had been concocted by Mr Chesney, or on his behalf, by reference to words and phrases, and infelicities, employed by Mr Rawding in other messages. After a careful analysis the judge found that the disputed emails were “probably genuine.” Mr Vanhegan was inclined to suggest that this represented a somewhat tentative conclusion, but I am reluctant to regard it as anything more than a conscious nod by a careful judge to the standard of proof which the Claimant had to satisfy. The judge’s judgment was circulated in draft on 31 October 2013. Unfortunately, because of difficulties in convening a hearing to deal with consequential matters, it was not handed down until 2 April 2014.

On receipt of the draft judgment Mr Rawding not unnaturally exhorted those former members of his IT staff to redouble their efforts to search for any evidence or analysis that might assist in proving that he had neither sent nor received the disputed emails. There can be no doubt that Mr Rawding had from the outset impressed upon the former IT staff of Apollo the imperative of locating any relevant material. Mr Cousans describes these requests as persistent and often harassing.

A little earlier in October 2013 Mr Stinson had told Mr Rawding that he thought that there was something significant in the coded lines of the printout of the email allegedly sent by him at 6.42pm on 10 July 2006. At about the time that the judgment was circulated Mr Stinson completed his detailed investigation of the “hexadecimal code” on the relevant printout. He concluded that the date of sending indicated thereby was 18 March 2003, rather than that on which the email was purportedly sent, 10 July 2006. Mr Stinson was by now in full time employment elsewhere and it is not in my view a legitimate or relevant criticism that he might have deciphered the hexadecimal code earlier. No other person appears to have realised its potential significance.

Mr Rawding immediately instructed a specialist data recovery company, F1 Group, to carry out an analysis of the second purported email exchange in the light of Mr Stinson’s conclusion. F1, in the shape of Mr Bel-Dean, advised that a more rigorous and reliable verification of whether the email had in fact been sent should be carried out. He recommended that F1 should instead conduct a data recovery exercise of the email system containing the mailbox from which the email was supposed to have been sent. He requested that F1 be supplied with all servers and backup tapes that might possibly contain information relating to the email account used by Mr Rawding.

In the latter half of 2013 Mr Silver cleared out his garage and came across a box of old tapes which had clearly been there for some years, and about which he had forgotten. He gave them to Mr Cousans. Mr Cousans recognised that some backup tapes were in amongst this material but thought nothing of it, for the reasons already explained. He dismissed them as junk. In November 2013 Mr Cousans received yet another request from Mr Stinson, Mr Rawding and the F1 Group for any data backups of any kind. Mr Cousans knew of the whereabouts of some old backup tapes, which for the reasons already given he regarded as useless, and of course he now had the tapes given to him by Mr Silver. In his sixth witness statement made on 7 May 2014 he describes what he did next:-

“26.

…I searched through several boxes, shelves and storage areas containing old hardware peripherals, cables and all formerly used data storage media. I collated all of the old data backup tapes I could. This process took me about a week to sort through mixed up hardware materials, cabling, connectors and to filter out any tapes from in amongst the discarded junk. I delivered all the backup tapes I found to F1 Group.

27.

I did not believe there could possibly be any useful data on any of those tapes. I wondered whether F1 were looking for server configuration information on the tapes or some clues relating to the server itself rather than any back up information which I felt sure could not exist due to perpetual overwriting.

28.

The first time I had any inkling that the tapes had any relevant information was when I heard back from Phil Stinson and Jason [Rawding] that F1 had discovered it was possible to recover overwritten files. I did not know that such old and overwritten tapes could be analysed in the way conducted by F1. This had never occurred to me.”

Again, this evidence is untested but inherently credible.

As foreshadowed above, by using time-consuming specialist data recovery procedures, F1 was able to recover data from the tapes which covered the material period and, in March 2014, produced a technical report the conclusion of which was that Mr Rawding had not sent the email of 6 July 2006.

On 14 March 2014 Mr Rawding issued an application for permission to rely upon additional evidence. The evidence included the F1 report but also a number of factual witness statements which sought to explain why the evidence had not been filed sooner.

The judge heard this application on 2 April 2014, prior to handing down judgment. It is right to put it into context. Although we have not gone into the matter in any great detail, it is apparent that Mr Rawding had on several previous occasions attempted to introduce into the trial further hitherto unheralded evidence, or previously undisclosed material, in a manner which had contributed significantly to the trial severely overrunning its estimated duration of five days. The judge had formed a poor opinion of Mr Rawding and Mr Rawding had given him ample material upon the basis of which he could form that view.

The judge dismissed this “yet further” application. He directed himself as follows:-

“It seems to me that the two tests which must be applied to this material in taking the decision are question one, am I without detailed factual enquiry, which I am not in the position to undertake at this stage, able to conclude that I have reached the wrong decision? If I were able to answer that question yes, I undoubtedly ought to reopen the matter. If the answer is no, I ought then to go on to the second question, which is, is this material new material? The answer to that clearly is yes. And if it is new material, ought it with reasonable diligence have been possible to find it at the time or in time for the original trial? Because that is the Ladd v Marshall test which the Court of Appeal will apply to whether this is new material for the purposes of an appeal. So those are the two tests.”

He concluded first that he could not decide that he had come to the wrong decision without further very detailed factual enquiries. Second, he concluded that “this is material which should have been disclosed at the stage of documentary discovery more than two and a half years ago.” It is plain that what the judge is there referring to as the material which should have been disclosed is the backup tapes examined by Mr Bel-Dean. In order to put that latter finding into context, I should point out that of the twenty six backup tapes which had by then been supplied to Mr Bel-Dean, only four proved to be either useful or relevant. What the judge was not told was that restoring the data on those backup tapes had been an incredibly time-consuming process. Mr Bel-Dean’s first analysis of these tapes took from November 2013 until March 2014, during which time he was focusing his searches alone on the first email said to have been sent by Mr Rawding on 6 July 2006.

Mr Rawding is critical of the judge’s exercise of the jurisdiction to receive further evidence up until the perfection of the Order of the court, often referred to as the Re Barrell jurisdiction after Re Barrell Enterprises [1973] 1 WLR 19. It is suggested that the first question which the judge asked himself was not the appropriate question, and that an application made before judgment is handed down requires a more flexible approach than a straightforward application of Ladd v Marshall principles. However Mr Vanhegan also submits that the judge in any event reached an unjustified conclusion on the first limb of Ladd v Marshall, [1954] 1 WLR 1489, whether it could be shown that the evidence could not have been obtained with reasonable diligence for use at the trial.

Matters have moved on since the hearing before the judge on 2 April 2014 in that in mid-April 2014 Mr Bel-Dean was asked to conduct some further work, including the same exercise as he had already conducted but this time in respect of the second email purportedly sent by Mr Rawding on 10 July 2006, and also in order to establish whether the emails to which Mr Rawding was apparently responding had in fact been received by his email account. This gave to Mr Bel-Dean the opportunity to conduct further analysis which confirmed the conclusions in his first report. In consequence Mr Bel-Dean has produced a report of 7 May 2014 which is that which Mr Rawding now seeks permission to introduce in evidence in support of his appeal. The report of 7 May 2014 is more full and more clear than the earlier report and to my mind makes an additional and material point.

Mr Bel-Dean’s report of 12 March 2014 contains the following paragraph:-

“Should the emails have been deleted, Microsoft Exchange keeps a record of deleted emails for integrity so that the catalogue of emails have a consistent record. This allows recovery and restoration from back ups of deleted messages. There were no deleted messages either side of the emails we were looking for and the recovered email had not been deleted.”

Seaga introduced into evidence for the purpose of the hearing before the judge on 2 April 2014 a witness statement of Angela Olson dated 31 March 2014. In this witness statement she explained that she was employed by Seaga in the capacity of information technology and had been working in that capacity for almost twelve years. Whilst she was considered the resident expert at Seaga on its computers, she did contract with outside consultants to confirm her thoughts and verify items. She expressly records:-

“On this matter I have engaged outside consultants, but due to time constraints, they were not able to provide a written report.”

Ms Olson went on to observe that the critical point, not apparently addressed by Mr Bel-Dean, was that in order to be detectable from backup tapes the emails in question must be present when the backup is created. Thus she observed:-

“If a mail was sent, deleted and then purged from the deleted items prior to the backup routine running, there would be no backup and no time stamped deleted. Identifying the absence of a file on a tape does not prove it never existed.”

In the event the judge did not consider this critique of Mr Bel-Dean’s work. He had no need to do so given his decision not to admit Mr Bel-Dean’s report in evidence for the reasons already explained. As it happens the report of Ms Olson was not shown to Mr Bel-Dean before he produced his report of 7 May 2014.

In that latter report Mr Bel-Dean repeats and slightly recasts the paragraph from his earlier report which I have set out at paragraph 31 above and then adds what I understand to be a new point. For clarity I set out both paragraphs. “JR 1” and “JR 2” are references to the two emails allegedly sent by Mr Rawding on 6 and 10 July 2006 respectively.

“71.

The emails were not in the deleted items folder. Should the e-mails have been deleted, Microsoft Exchange keeps a record of deleted emails for integrity so that the catalogue of e-mails have a consistent record. This allows recovery and restoration from backups of deleted messages. There was no record that either JR-1 or JR-2 had been deleted.

72.

The .PST files also contain additional folders and emails that are not accessible to the user as they only exist on the server. No trace of the emails was found in these additional folders. There is one key email folder that is named “recoverable items”. This contains items that the user has deleted from their deleted items (i.e. as a result of emptying his or her “deleted items” folder). This folder is itself empty showing that no emails have been deleted from the mail box from the date of the last backup of the mailbox. This is the case for all the .PST backups.”

I do not understand Ms Olson to be referring in her report to the fact that the PST files contain an additional and key email folder that is named “recoverable items.” It is to this folder that the ordinary user of an email account does not have access. Thus it is not the case that an email which has been subject to the double deletion process, deleted from either the sent box or the inbox and then purged or deleted from the deleted file prior to the backup routine being run, would not be present in the files capable of being restored from the backup tapes. Paragraph 72 of Mr Bel-Dean’s report of 7 May 2014 represents I believe the first reference in the litigation to the existence of a recoverable items folder. I do not understand Professor Sommer to have adverted to the possibility of reconstructing this key folder from the backup tapes, although it may of course be the case that he discounted the possibility of extracting any useful information from the backup tapes in consequence of their age and the frequency with which they had been subjected to overwriting.

In his further report of 30 January 2015 Mr Bel-Dean addresses the technical possibility of deleting an email in such a manner that it would not appear in the recoverable items folder in the PST file. I have summarised that evidence at paragraph 4 above. As I there point out, Mr Bel-Dean’s evidence, taken at face value, demonstrates that it is at the least implausible that the four emails were sent or received by Mr Rawding.

Of course, the evidence of Mr Bel-Dean may be flawed. Mr Bel-Dean appears however to have the necessary expertise to give the evidence which he does and it is inherently credible. It is manifest that it would, if given at trial, have had an important and possibly decisive influence on the one issue which the judge had to decide, the authenticity of the alleged email or emails containing the guarantee of Apollo’s indebtedness.

Mr Budworth attempted to argue that the evidence of Mr Bel-Dean is not sufficiently compelling to justify its admission at this stage, in particular because it does not completely rule out the possibility of deletion in a manner which would be undetectable by an examination of the backup tapes.

Whether Mr Rawding would have had the foresight or the ability to commission a deletion exercise of the type posited by Mr Bel-Dean within the required time-frame is of course a factual enquiry which has not yet been undertaken. On the basis of the material available at trial the issue did not arise.

More generally however, Mr Budworth’s task in seeking to undermine the cogency of the new evidence was hampered by his own lack of technical evidence in response to that of Mr Bel-Dean. Before the judge Seaga made no effort to deal with Mr Stinson’s (and Mr Bel-Dean’s) point concerning the hexadecimal code, although it did seek to meet Mr Bel-Dean’s broader thesis by means of the witness statement of Ms Olson. Seaga had at that time according to Ms Olson engaged outside consultants, but apparently they were unable due to time constraints to produce a written report. Seaga was served with Mr Bel-Dean’s report of 7 May 2014, together with the Appellant’s Notice seeking permission to appeal, on or shortly after 7 May 2014. There has been ample time since then for Seaga to respond had it so wished. Of course Seaga was not obliged to do so and it was a perfectly legitimate approach to invite the court, for discretionary and other reasons, simply to refuse to entertain the new evidence. However that approach has its limitations. Seaga has rightly not suggested that it lacked the resources to commission expert assistance nor has it suggested that it would have been disproportionate so to do. Moreover, on 29 August 2014 Seaga’s solicitors wrote to Mr Rawding’s solicitors in these terms:-

“Thank you for your letter of 15^th August 2014 to which you attached your client’s proposed appeal bundle index.

Your draft index is agreed. Please note however we are instructed by our client to obtain a further expert’s report to response (sic) to the report of Mr Bel-Dean. We anticipate that in addition to this a further statement will be required from Steven Chesney. This will be filed pursuant to CPR Practice Direction 52B, paragraph 8.2.”

Seaga has filed no such report. In the light of its expressed intention so to do, the attempt to suggest that Mr Bel-Dean’s evidence is insufficiently compelling to justify its belated admission lacks plausibility.

Mr Budworth naturally submitted that we should submit to rigorous, and where necessary sceptical, scrutiny the suggestion by Mr Rawding that this evidence could not with the exercise of reasonable diligence have been made available for use at the trial. In that regard he was particularly critical of Mr Rawding having informed the single joint expert that no backup tapes were available. However, as I have pointed out above, although an apparently unqualified answer was given to that effect in the written response to the enquiries made by Professor Sommer, there is apparently and inherently credible evidence to the effect that the discussions between Professor Sommer and the former Apollo IT personnel were more nuanced. It was only in November 2013 that Mr Bel-Dean suggested that he might be able to recover the overwritten files, and it then took him the best part of six months to discover that out of thirty seven tapes ultimately made available to him, only four were relevant. In circumstances where neither Professor Sommer nor the former Apollo IT personnel appreciated the possibility of extracting useful information from the backup tapes, I do not consider that Mr Rawding is to be castigated for having failed to use reasonable diligence.

Mr Budworth is also critical of Mr Rawding for failing to pursue an application made in January 2013 to be permitted to introduce evidence from a Mr Brian Burgess, an IT specialist at X2 Connect, a company associated with Apollo. It seems that the judge was prepared to countenance the material produced by Mr Burgess being sent to Professor Sommer for consideration, but only on certain terms as to costs. Ultimately the application was abandoned. The judge deals with this episode in his judgment as follows:-

“6.0.17.The fifth application concerned the technical evidence. An attempt was made to introduce an IT specialist from B2H (Brian Burgess). He purported to have examined various internet files and to express an opinion on the authenticity of the disputed guarantee emails. This is the province of an expert and there is a jointly instructed expert in this case, Professor Sommer. I pointed out that the appropriate course was to return to Professor Sommer, not unilaterally to instruct another, unauthorised, expert. In any event, on reading the statement I pointed out that the witness appeared to have examined files extracted from the wrong server. The application was not pursued. Counsel for JR, in his closing submissions, seeks to rely on the factual portion of Mr Burgess’ witness statement. This is not a legitimate reliance. The witness was not called. His evidence was not agreed. No Civil Evidence Act Notice was served. In any event, the factual parts of the statement take the case very little further.”

It is possible, although by no means clear, that the material ultimately examined by Mr Bel-Dean may have included backup tapes discovered by Mr Burgess as having been used in connection with computer facilities shared between Apollo and X2 Connect until November 2006. However there is no reason to believe that submission of this material to Professor Sommer would have resulted in discovery that the recoverable items folder could be recreated. Moreover an exercise conducted at this juncture would not have included examination of the tapes subsequently found in 2013 in Mr Silver’s garage.

For all these reasons I am satisfied that Mr Rawding has demonstrated that Mr Bel-Dean’s evidence could not with reasonable diligence have been made available for use at the trial. The standard required is reasonable diligence, not higher. Of course Mr Bel-Dean could have been consulted earlier. But the consensus of opinion, acquiesced in by the single joint expert whose expert evidence alone could be relied upon at trial, was that the backup tapes could not conceivably yield useful information. When Mr Bel-Dean was ultimately consulted, it was in the different context of seeking his expert assistance on Mr Stinson’s discovery concerning the hexadecimal code. It was thus by pure good fortune that Mr Rawding came to consult an expert with sufficient depth of knowledge and relevant experience to know and to volunteer that the backup tapes might potentially yield useful information notwithstanding the multiple overwriting.

Mr Budworth was critical of Mr Rawding for having failed in November 2013 to return either to the single joint expert or to the court to seek his or its guidance as to what appropriately should be done in the light of Mr Bel-Dean’s indication that the backup tapes might after all be worthy of examination. I reject this criticism. Mr Rawding could not approach the single joint expert unilaterally, and Professor Sommer for his part would doubtless have declined to become involved at this stage without instruction from the judge and, I might add, assurance that he would be paid. In any event Mr Rawding had nothing to tell the judge other than that a yet further expert had indicated a possible line of enquiry. Mr Bel-Dean’s initial analysis of the tapes took from November 2013 until March 2014. On 14 March 2014 Mr Rawding made his application to the judge seeking permission to rely upon Mr Bel-Dean’s report annexed to his witness statement of 12 March 2014.

Finally, it was Mr Budworth’s submission that if we are minded to regard Mr Bel-Dean’s evidence as apparently credible and compelling, we should nonetheless decline to admit it on this appeal and leave Mr Rawding to bring a new action to set aside the original decision as having been obtained by fraud. There is some doubt as to whether either the County Court or even the High Court has jurisdiction to entertain an action to set aside or rescind a decision of the County Court - see the discussion in Bishop v Chhokar [2015] EWCA Civ 24 at paragraphs 34-37. However in my view the better course here is to admit the evidence on the appeal. This is not one of those typical cases in which evidence has come to light long after the proceedings have been concluded indicating that the trial court has been deliberately misled. Rather, this is a case in which Mr Rawding attempted to introduce the relevant evidence, albeit not in quite its finalised form, before judgment was handed down. Moreover the new evidence bears directly on the very, and as it happens the sole, issue which the judge had to decide, viz, the authenticity of the emails. It is I think a paradigm case in which we should exercise our power under CPR 52.10 (2) (b) to refer the issue for determination by the lower court in the light of the fresh evidence.

Accordingly I have no doubt that this is an appropriate case in which to admit the new evidence on the appeal. I would admit both Mr Bel-Dean’s report of 7 May 2014 and his second report of 30 January 2015. In the light of that evidence, the appeal must plainly be allowed. I would set aside the judge’s judgment against Mr Rawding, and refer or remit to Judge Halbert for determination the issue of the authenticity of the emails.

If my brethren are in agreement with this course it will be for Judge Halbert to give directions as to the conduct of this determination. Since however we have admitted the evidence of Mr Bel-Dean on this appeal, it is to my mind clear that Mr Rawding should be permitted to produce that evidence before Judge Halbert. In any event however, having regard to the manner in which the evidence has emerged, and having regard to Professor Sommer’s apparent approach to the likely utility of the backup tapes, it would not in my judgment be appropriate in these changed circumstances to adhere to the regime which permits evidence on the technical aspects to be given only by a single jointly instructed expert. In so suggesting I mean no disrespect to Professor Sommer, whose approach may yet be vindicated, and who has had no opportunity whatever to comment upon the current debate. There is however no further role for him to play. Plainly Seaga must be at liberty to adduce its own expert evidence on data recovery. Beyond that, it will be a matter for the judge what further fresh evidence, if any, to permit. He may well feel it appropriate to permit certain witnesses to be recalled, or to be required to be re-tendered for further cross examination.

It is apparent from the transcript of the hearing before Judge Halbert on 2 April 2014 that he intends to retire at the end of September this year. He himself envisaged that it would be unlikely that this court could deal with the matter within such timescale as would enable the matter to be remitted to him. I am glad that we have been able to deal with the appeal more quickly than he envisaged. There should now be no difficulty in accommodating a hearing which will enable Judge Halbert to complete the determination of the issue before his planned retirement. Obviously the parties must play their part in returning to Judge Halbert for directions as soon as they have had the opportunity to consider what directions they seek. Any expert instructed by Seaga will not be starting from scratch as was Mr Bel-Dean, although I do not underestimate the time which may be required for a thorough appraisal of his work and, if necessary, such further work on or with the backup tapes as may be thought appropriate. It may be, I know not, that Seaga has already instructed experts to comment on what Mr Bel-Dean has done. So far as I am aware the backup tapes remain in Mr Bel-Dean’s safe-keeping. But there are seven and a half months between now and the end of September. It must be possible with proper cooperation to prepare for and conduct a hearing within that time scale. No doubt Judge Halbert can if necessary be relieved of other commitments so as to ensure that time can be made available.

I agree.

I also agree.