Destruction of Documents Before Proceedings Commence: What is a Court to Do?

35 Pages Posted: 23 Sep 2015

See all articles by Camille Cameron

Camille Cameron

Dalhousie University - Schulich School of Law; University of Windsor - Faculty of Law

Jonathan Liberman

Melbourne Law School and Melbourne School of Population and Global Health

Date Written: September 3, 2015

Abstract

The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were highly likely, if not certain, to occur. The authors argue that the criminal test of attempting to pervert the course of justice (or contempt of court), as laid down in the recent case of BAT v Cowell, is not the appropriate test because it focuses on the lawfulness of the destruction rather than on the effect of the destruction on the other party’s ability to obtain a fair trial. The authors explain what the proper test should be — whether the destruction of documents has made a fair trial impossible — and identify the factors that should influence a trial judge’s exercise of discretion in a case where documents have been destroyed.

Keywords: Civil Litigation, Destruction of Documents, Fair Trial

JEL Classification: K00, K41

Suggested Citation

Cameron, Camille and Liberman, Jonathan, Destruction of Documents Before Proceedings Commence: What is a Court to Do? (September 3, 2015). Melbourne Univeristy Law Review, Vol. 27, No. 2, 2003, Available at SSRN: https://ssrn.com/abstract=2655791

Camille Cameron (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

Jonathan Liberman

Melbourne Law School and Melbourne School of Population and Global Health ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

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