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Marlton v Tektronix UK Holdings Limited, Chancery Division

18 February 2003
The issues

Specific disclosure – computers – e-mails

The facts

This case concerned the sale by Claimant of share capital under an Acquisition Agreement. The Defendant was due to pay-deferred consideration and failed to do so. Its excuse was that there was a shortfall in the next asset value and that it had delivered draft accounts by e-mail to the Claimant to two e-mail addresses. The Claimant argued firstly that e-mail was not a specified method of delivery under the Agreement and so the delivery was not valid and secondly, that an e-mail addressed to one account had not been received and that the one addressed to the other account was not opened until the 16th October, 4 days after it was sent and 1 day after the final deadline for delivery. The Defendant sought an Order for inspection of the contents of the hard discs of the computers, any backup available, and any server over which the Claimant had power or control.

The decision

For the purposes of Part 31 of the CPR “documents” included computer databases. Since the issue between the parties relating to the receipt of e-mails, all documents tending to show the date of receipt or non-receipt were potentially disclosable. All such materials should be disclosed.

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