Life's greatest learning opportunities often come from things that go wrong. Only businesses that are properly vested in learning from mistakes are truly positioned to maximise their potential.

The aviation industry has this down to a fine art. When things go wrong, the black box flight recorder ensures that their errors are "data rich". That industry's ability to learn from its mistakes has taken it from one of the most dangerous forms of transport to one of the safest.

The law is no different. As part of the world's largest law firm, our disputes team is also "data rich": so here we use our knowledge of why things go wrong to help you to either avoid disputes in the first place, or to identify opportunities for fighting your client's corner.

The duty to preserve evidence where litigation

In anticipation of litigation, parties have a duty to preserve the best available evidence of the facts they seek to prove. But what happens if such evidence is lost? 

A reminder of the significance of the duty to preserve evidence is provided in the recent case of Tollerton & Tollerton v. Highland Fuels Limited [2022] SC ABE 12. The case concerned a dispute between the owners of an oil tank, which leaked causing damage, and the company that delivered and filled it. The owners argued that the delivery driver had been negligent in delivering oil to the tank when he ought to have known that the tank was in an unfit state to contain oil. Accordingly, damages were sought in respect of losses incurred as a result of the leak. 

On discovering the leak, the owners contacted their insurers who obtained an expert report on the tank's condition before arranging for the tank to be removed and destroyed. 

As the tank had been destroyed, the pursuers sought to rely on the report obtained by their insurers as the best attainable evidence of the tank's condition. The defender objected to this on the basis that it had been prejudiced by its inability to inspect the tank, and this prejudice was not removed by the availability of the report. The defender submitted that the pursuers had a duty to preserve the tank and their failure to do so meant that the best evidence had been lost.

Sheriff Mann agreed with the defender. Importantly, the Sheriff distinguished between the case of documents and real objects:

"In the case of photocopied documents, nothing turns on the look and feel of the words and figures. So long as the photocopies represent the actual words and figures and their layout, that is all that is required. Not so with real objects such as the oil tank in this case where the look, feel and texture of the item could be of critical importance in determining its condition and whether a delivery driver ought to have observed that the tank was not in a fit condition to receive a delivery of oil."

Sheriff Mann concluded that, in circumstances where the case turned on the observable condition of the tank by the delivery driver, the pursuers ought to have recognised the importance of preserving the evidence. The defender required the opportunity to inspect the tank to assess its observable condition in order to counter the pursuers' evidence. 

The pursuers had failed in their duty to preserve the tank and secondary evidence of the tank's condition was inadmissible.  

The message is clear – preservation of the best evidence is key to a successful claim, and is required of parties whenever litigation is contemplated or foreseeable.  

Previous Black Box Tips

• 10 August 2022 - Black box tips from Dentons' Scottish Disputes team: Ensuring the enforceability of exclusion and limitation clauses
• 27 July 2022 - Black box tips from Dentons' Scottish Disputes team: Maintaining privilege over legal advice within an organisation
• 13 July 2022 - Black Box Tips: Ensuring your terms and conditions apply in a "battle of the forms"
• 29 June 2022 - Black Box Tips: No oral modification clauses
• 9 June 2022 - Black Box Tips: "Standstill" agreements in Scotland