What are judges for? What is the law for? A case of emails, mice and murder

The recent judgment of HHJ Paul Matthews in Frost v Giddens [2025] EWHC 3325 (Comm) is an interesting one for thinking about what it is that judges do. 

Read on for more about emails but, I'm afraid, only a little about either mice or murder.

The Frost case has its complications but the relevant background to this judgment is reasonably straightforward. 

It all started when Ms Giddens considered that she had been wronged by Mr Frost and so she sued him. That was in November 2019. 

For legal reasons, it was important for Ms Giddens to be able to show that she did not know certain facts until 2016. Mr Frost argued that she certainly would have known those facts in 2012 or 2013.

One striking feature of the case is that, in October 2019, about one month before she started suing Mr Frost, Ms Giddens appears to have deleted almost all of her emails dated prior to 10 January 2018. 

The preliminary question of whether Ms Giddens had the requisite degree of (lack of) knowledge for her claim against Mr Frost to be sustainable came up for trial before HHJ Russen KC in 2022. At that trial, she was questioned about what was said to be her deliberate deletion of emails. The cross-examination included this exchange.

Question: And the reason they are not available is because you had deleted them? You accept that's the reason they are not available, Ms Giddens?

Answer: I would never have deleted them deliberately. If I've deleted them, if they've gone, I do not recall deleting my emails.

The judge summarised her evidence as to how the emails were deleted as follows.

[Ms Giddens] says that she was filling out an online application form for HSBC late one evening in October 2019. She said the form would not submit successfully and she was offered assistance through an online chat-box. In response to [Ms Giddens] saying her application form would not submit, the advice was that there was a known glitch with the system and if [Ms Giddens] removed her browser history then the application should go through. She said that, in fact, clearing the history still did not lead to a successful submission of the form the next day. To quote from [Ms Giddens]'s witness statement:

"Eventually, I found somewhere on my computer a box to tick to remove the history, but I did not know the difference between the browser history and the general history, and as a result I seem to have deleted more than I intended. Since then I have been unable to access large amounts of online emails. My inbox emails begin from 10.01.18 with only 7 odd emails in 2017 and a couple in 2002. My sent box only goes back as far as 26.08.19."

HHJ Russen KC had to consider what he made of all this. This is what he said in his judgment (Giddens v Frost [2022] EWHC 1022 (Comm)):

121. The criticisms of [Ms Giddens'] account were powerful ones. I have been left feeling puzzled as to how, through one or more clicks of the keyboard, emails held on a server can have been so easily and irretrievably lost by accident.

122. However, I am not persuaded her account of events is untrue. Ultimately, and in the absence of convincing expert evidence demonstrating her explanation is not credible, my decision on this point rests upon my assessment of her as a witness. As [her barrister] pointed out, the contrary conclusion would involve [her] attempting to hoodwink the court with a false narrative. [Ms Giddens] did not come across to me as a witness who was perjuring herself.

So there you have it: a puzzling incident but just one of those things.

You may or may not be surprised to hear that Mr Frost and his team were not happy to leave it there. They tried to appeal that judgment, but got nowhere. Then, in 2024, they got hold of some expert evidence saying that Ms Giddens' account of how the emails were deleted was "not technically plausible" and tried to re-open the appeal, but again they got nowhere.

So then, in 2025, Mr Frost and his team obtained a further expert report disputing Ms Giddens' account and issued a fresh claim against her, this time seeking to set aside the judgment of HHJ Russen KC on the basis that it had been obtained by fraud, i.e., because she had lied about deleting the emails. HHJ Paul Matthews had to decide whether that claim should be allowed to proceed.

Before I tell you what HHJ Paul Matthews thought about it, I'm going to pause here and talk about something completely different. (It is relevant, honest!)

A Case of Mice and Murder is a jolly whodunnit by Sally Smith. It's a proper, old-fashioned murder mystery with an unlikely but likeable detective, a cast of suspects, numerous clues and various red herrings. The Sunday Times apparently described it as "a delight from first page to last", and I enjoyed it too.

Sally Smith is a retired senior barrister and her fictional detective, Gabriel Ward KC, is also a barrister. The victim in the book is the Lord Chief Justice, the events mostly take place in the Temple, various legal characters are suspects and, all in all, it is a heavily law-infused book. But please don't let that put you off. The law stuff is really nothing more than a picturesque backdrop to a traditional muder mystery. 

There are however two points in the book that struck me as showing the author to be someone who really knows the law. 

The first point is on the very first page. We are introduced to Ward and told that he never gave much thought to truth or justice as "He had only an immense respect for the rule of law and for the necessity for precision in its application and certainty in its results."

The second is later on. Someone suggests that the answer to the question "What are judges for?" is "To find the truth". So Ward corrects him. 

"'That, I fear, is your mistake,' said Gabriel, diverted, as always, by a legal point. 'The answer is that they are there to provide certainty.'

... 'Even if what they're certain of is not true?'

'Even then,' said Gabriel. ... 'More than we need truth ... we need certainty. And truth is such an uncertain commodity.'"

Of course, in the book, Ward acts as a detective and so he does find out the truth. But it's what he says about the importance of certainty is what I want to talk about.

There are lots of jobs that are similar to the job of a judge. For example, arguing about the meaning of words or texts is something that lawyers, philosophers and literary critics all do. Judges may even need to decide the meaning of words in foreign languages, just as translators and interpreters do. (One great example of this is the case of A v B [2018] EWHC 1370 (Comm), in which a judge had to determine whether "Лондонский международный арбитражный суд" referred to the London Court of International Arbitration, a specific arbitral institution based in London, or just to arbitration in London generally. I think the court got this one wrong, but read the judgment for yourself to see how the judge went about deciding the question.) Questions of what is going on in someone's mind are questions not only for lawyers but also psychologists and psychiatrists. Judges might have to decide who really painted a painting (in this case, a judge found that a painting was a van Dyck). And, of course, much of what goes on in court is trying to find out what happened in the past, which is precisely what historians do. 

The main difference, it seems to me, between these other professions and that of the judge is the point that Smith made through Ward about certainty. If a question, of any kind, has to be resolved in order to resolve a dispute in court, then a judge needs to decide it one way or the other. An academic can investigate and conclude that "more research is called for" or "we may never know", but, if the question has to be decided, then there is no such escape route for a judge. When we need an answer, we need a certain answer more than a true one. 

Sure, a translator has to choose which words will finally make it into print, and an art historian has to make an attribution one way or the other, but a later translator or expert might come up with a different approach: there is always something provisional, even in the case of an authorised translation of a holy book or a catalogue raisonné. Philosophers and critics obviously decide nothing and every historian's work is an invitation to a later revisionist. Only a judge's word is final.

So let's go back to Ms Giddens and Mr Frost. "Did Ms Giddens deliberately delete her emails?" is a question about an event in history. One suspects that the historian who tried to answer it would want to have a look at the new expert evidence about how the deletion might have happened. But, as I think you will have guessed, that's not how courts work. HHJ Paul Matthews decided that, in effect, Mr Frost had already had his chance to prove that Ms Giddens was lying and he doesn't get a second chance: he even used that phrase that lawyers love more than anyone - "a second bite at the cherry". (I'm not sure why this approach to eating is so widely reviled in the legal community. What's wrong with multiple bites on stone fruits? Do all lawyers consume cherries whole and spit out the pits?) 

Indeed, the judge went further. He found that Mr Frost's attempt to re-litigate the point was an abuse of process, and he struck out the whole claim. The legal system is so keen on certainty that trying to get to the truth, at least in some cases, is abusive.  

But before you go, there is just one final point to consider. I mentioned at the outset that Ms Giddens considered Mr Frost to have wronged her. I'll give you a little more detail about her claim. This is how the judge summarised it:

"[the] litigation ... relates to claims made by her arising out of the transfer in 2012 of some £90,000 from [Ms Giddens'] pension scheme into what turned out to be a scam investment in truffle plantations, run by [Mr Frost's] brother. Her investment was lost. ... This scam did not affect [Ms Giddens] alone. There were other investors too who lost money. It was described by ICC Judge Barber in Secretary of State v Viceroy Jones New Tech Ltd [2018] EWHC 3404 (Ch). But for present purposes I need say no more about it."

If Ms Giddens' emails had been available to the court then perhaps her claim to recover the money she lost in the truffle plantation scam would have faced difficulties. The law is there to provide certainty rather than truth. But perhaps, judges feel, it is also there to provide justice.