An ‘intrusive’ request for an Irwin Mitchell partner’s personal phone has been rejected by a judge in disclosure talks ahead of a negligence claim.
Jeremy Gordeno is claiming the firm gave him incorrect advice on the sale of his £3.8 million home, failed to protect his property right and caused him to sell it for far less than he could have done.
Gordeno, a former nightclub boss then bankrupt, launched a claim against Irwin Mitchell in the Rolls Building in September 2022. The firm denies the allegations.
At a costs management conference today before Master Kaye, a number of issues in the case were argued.
Part of Irwin Mitchell’s defence is it believed it was advising ‘an experienced businessman and property entrepreneur’ and Gordeno was in a bad financial state - including being sued in separate litigation - and would have sold the house to raise funds whatever advice he had received.
One of the issues was whether the head of Irwin Mitchell’s real estate team Ben Acheson should have to submit his personal phone or devices for disclosure.
David Reuben Schmitz, for Gordeno, pointed to an email which Acheson was said to have sent to Gordeno and suggested there could conceivably be text messages on his phone.
But the application was resisted by Jack Steer, for the firm, who pointed out it would be unusual for a fee earner to correspond with their clients by text from their personal phone. ‘The claimant has not given any examples of there being correspondence by text’, Steer said. ‘There is no reason to suspect that would even produce any relevant documentation. It is highly intrusive.
‘There is no actual evidence in support of the contention that it is likely to produce relevant documents. It is a fish and nothing more.’
Schmitz began to suggest that the process of checking the phone would be relatively simple, and would just involve opening the phone and searching ‘Gordeno’ in the texts.
Master Kaye interrupted to say: ‘I can tell you from bitter experience that is not how it works, because I used to be a solicitor, so that is not going to work. That is not how it works, it is not that simple.’
Schmitz pursued the point, quipping: ‘Mr Acheson is a solicitor - and therefore is a member of a venerable profession - and therefore I would say would not be expecting the defendant’s solicitors to be taking his phone off him and his laptop off him and sending off to IT experts.’
But the judge informed Schmitz ‘these days that is not how it works’ and said there had to be some evidence to support an application to search Acheson’s phone.
After taking instructions, Schmitz informed the remote hearing: ‘I do not have any particular facts which would be persuasive that these documents would be available in his personal mobile.’
