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• When is it safe to bin that file? 

In summary, the court decided that the conduct of BAT and its lawyers was not so bad and Mrs McCabe had not suffered such prejudice as to justify the extreme remedy of striking out the defence. The court also held that, even were the criticisms justified, a strike-out would have been disproportionate. Given our own Court of Appeal's well-known desire to give case- managing judges unimpeachable discretion in procedural matters, it is interesting to speculate just when this decision might be applied or how little circumstances would need to change for a draconian remedy to be upheld.

It would certainly be wrong for companies to treat this judgment as a green light to disregard sources of documentary evidence under the guise of good document management practice. Litigation lawyers have always sought to ensure that evidence emerges in the best possible form and this will not change. Equally, courts will be assiduous to ensure a level playing field. A corporate defendant survived this particular challenge but shortcomings in the game of document management will always risk sanctions in some form.

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