Where a party seeks sanctions (particularly striking out a pleading) for the destruction of documents before litigation commenced, the complaining party must establish that the destruction amounted to an attempt to pervert the course of justice or contempt of court, proved to the civil standard with due regard to the seriousness of the allegation per Briginshaw. Mere prejudice from pre-litigation document destruction, without establishing illegality, is insufficient to ground such sanctions. The test for imputed waiver of legal professional privilege is inconsistency between the client's conduct and maintenance of confidentiality, not mere fairness; voluntary disclosure of specific legal advice does not waive privilege over all related advice spanning many years. The power to strike out a defence for discovery default includes the power to make issues-based orders striking out only those parts of the defence affected by the prejudice.
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