CL-2023-000230 - [2025] EWHC 2608 (Comm)

I am faced with a situation in which I find each side’s contentions hyperbolic. The defendants present the [disputed] documents as if they constituted a key to the labyrinth; but they rationally appear to be marginally relevant to the outcome of the case at best, though squarely relevant to a pleaded contention. Rana proceeds on the basis that their disclosure would be an interference with weighty privacy rights touching her vital interests; but they appear to be unlikely to cause her any tangible harm, and the subjective fears to which she refers are not justified by cogent objective evidence of any significant increased risk to her.

So I return to basic principle. I am not being asked to start from a blank slate, but from an agreed DRD that the court has sanctioned. As things stand, the DRD identifies these as documents bearing on a “key issue” for disclosure. So far as para 18 is concerned, the burden lies on Rana to satisfy me that it is necessary to vary the DRD in order to enable the case to be decided justly. She has not satisfied that burden. Disclosing the [disputed] documents would not obstruct the just resolution of this case. They are directly relevant to a pleaded issue; although I have considerable doubt whether that issue will ultimately matter, it remains a pleaded allegation, and its resolution will (at worst) prove a side-show. It is not suggested that the search for the [disputed] documents is burdensome, or that they are so numerous that disclosure will be disproportionate. The only justification for their non-inclusion among issues for disclosure is that they are private and confidential. But the risks attendant on their disclosure, if necessary with appropriate safeguards, are slight; they fall well short of showing that secrecy is “necessary”.

For those reasons, Rana has not persuaded me to the requisite standard that an amendment of the DRD is justified.

As to para 14 of PD 57AD, I reach the same conclusion as far as disclosure is concerned. Rana’s subjective fears are not weighty enough to displace the need to disclose the [disputed] documents in order to address what remains a pleaded issue, on which they are likely to directly bear. Indeed, it is difficult to see how that issue can be resolved fairly, except by their disclosure. Moreover, under the disclosure regime specified in PD 57AD, they are squarely within an issue that the parties agreed should be disclosed, that the court ordered should be disclosed following a Model D search, and which I have no sufficient reason to vary. The same conclusion would apply to the extent that the [disputed] documents are “known adverse” documents.

There remains, however, the possibility of limiting inspection. That raises different considerations, because the court may be justified in imposing protective measures to protect confidentiality or privacy concerns even if those concerns do not justify complete non-disclosure. The test to be applied remains that of necessity, but to the extent that the interference with the efficient and fair trial of the action is reduced, the test is easier to satisfy.

Rana submits that the order should permit physical inspection of the documents only. In her evidence, she says that she has no trust in the Defendants. The Brothers interpreted the relevant passages to include an allegation that there would be deliberate misuse by them, but that was not ultimately how Rana put it at the hearing. At the hearing she cited concerns that if documents (hard copy or electronic) are handed over, there is always a risk of mistakes being made.

If the documents were highly sensitive, or even more starkly their dissemination carried a risk of physical harm, such concerns might carry the day. But they are not, I find, in this category. I do not consider that such an order is justified. It might seriously impede the defendants giving and taking instructions. There are already many highly confidential matters in this case in relation to which no such extraordinary steps have been taken, and I would generally expect experienced lawyers and counsel to be astute to protect confidential documents, whether in hard- or soft-copy.

The defendants’ proposal is that the documents should be held securely in the jurisdiction by their respective solicitors, and that if the defendants themselves wish to see copies, they should attend Rana’s solicitors’ offices to look at them. With two qualifications, I accept that this proposal is appropriate. The first qualification is that I do not consider that it is necessary for the defendants to attend Rana’s solicitors’ offices to inspect documents. I think it is sufficient if (a) the defendants’ solicitors notify the claimants’ solicitors at least 7 working days in advance of any inspection by the defendants and then (b) that inspection takes place at the defendants’ solicitors’ offices, but without provision of hard- or soft-copy documents to the defendants themselves. This will not prevent the defendants’ solicitors informing the defendants of the factual matters that the documents establish in order to take instructions. The second qualification is that I think that not only the documents themselves, but their contents should be addressed in the existing confidentiality order. Those protections seem to me to be justified and sufficient to address the substance of Rana’s subjective concerns. I shall hear counsel on the precise form of my order.