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

In the context of disclosure under PD 57AD, “relevance” is a key concept. See PD 57AD para 2.1: “Disclosure is important in achieving the fair resolution of civil proceedings. It involves identifying and making available documents that are relevant to the issues in the proceedings.” But “relevance” can be used in at least four different senses. All these different aspects of “relevance” can matter, because disclosure is a means to an end.

The pleaded issues here concerning [redacted] documents in general fall into two categories.

First, there are issues concerning Saudi documents: Rana’s passports, their expiry, their possible renewal. The relevance of these documents to the proceedings is clear, since it is part of Rana’s case that they (or their absence) posed serious impediments to her participation in the PSC litigation, and that the brothers exploited that to cause her harm. But I need say nothing more about that, since disclosure of those documents is not in question.

Second, there are issues relating to [redacted]. That is, without doubt, a pleaded allegation; raised in the brothers’ defence, with issue joined in Rana’s reply (including in its amended version).

The [disputed] documents will, if they exist, be directly probative of that issue. If, for instance, Rana has a [redacted text], that will directly prove the brothers’ allegations. If she does not, it will directly disprove them. So these are documents that are relevant (likely to be probative) of a pleaded issue in the case, and where that relevance is direct, rather than a matter of oblique inference or “train of inquiry”. The documents are also relevant to a Disclosure Issue, in that they squarely fall within Disclosure Issue [redacted]. They therefore squarely fall within each of the first three meanings of “relevance” I set out above.

This is not in doubt. The point on which Rana takes her stand is that [redacted] is not itself an important point for the outcome of the case. Yes, it is pleaded; but pointlessly, because it does not form a key waypoint on the route to verdict. So, she submits, the fair resolution of the case does not require it to be considered, important as these documents might be to doing that.

In principle, that is a valid consideration in the context of extended disclosure, and especially when defining disclosure issues for extended disclosure. It is a point underlined in para 7.6 when discussing the way issues for disclosure should be formulated:

“ ‘Issues for Disclosure’ means for the purposes of disclosure only those key issues in dispute, which the parties consider will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings. It does not extend to every issue which is disputed in the statements of case by denial or non-admission. …”

It is, therefore, relevant to ask: how will understanding [redacted] matter?

I am not much assisted by reference to observations made by or to Cockerill J when she was dealing with the jurisdiction application. Those were directed mostly at a rather different point (namely Rana’s ability to participate as a claimant in proceedings in Saudi Arabia). It seems to me that, the case having now been pleaded, the parties ought to be able to explain on the basis of matters as they now stand whether the [disputed] documents matter, and how.

The question therefore is whether Rana’s [redacted] would have made a significant difference to her ability to manage her AICO shares. The brothers’ defence contains no express allegation that it would. I asked Mr Houseman KC, who appeared for the brothers, to help me understand the overall significance of the point in the context of the case. He gave two answers. First, he said, I should be slow to speculate too readily, at this stage of litigation, about how the case would develop as it moved towards trial. Secondly, in his skeleton argument, he canvassed how the argument might proceed.

As to the need to avoid undue speculation, I agree up to a point. Mr Houseman is right that pleadings, which should set out succinctly the factual points that a party intends to prove, do not generally define how they will be proved, or exactly how those primary facts will be put together to establish liability. However, when considering the importance of an issue for disclosure, it may be necessary to press further, and the parties need to be ready to explain, at least in broad terms, the part they envisage a particular fact playing in the case as a whole.

As to the brothers’ explanation of that, their case was sketched along these lines. Even if Rana had not been able to execute a valid Saudi Arabian power of attorney or travel to Sauda Arabia to transact judicial business, she might have been able to execute a Canadian power of attorney which would have enabled her to sell AICO shares. [Redacted] would have facilitated that.

It is fair to say, as Mr Weekes did, that the intermediate steps of this argument are not, even as primary facts, alleged in the brothers’ defence. It contains no suggestion that Rana could or should have used a Canadian power of attorney to manage or realise the value of her AICO shares. More significantly, in my view, even if that case were central to the defence, I was left uncertain how [redacted] would matter. I would be surprised if, under Canadian law, the right to execute a power of attorney is [redacted]. Nor is there evidence or allegation that Saudi law would [redacted] to recognise a Canadian power of attorney. And, if it ever would, one might think that the combination of Rana’s admittedly continuing Saudi citizenship coupled with [redacted] under Saudi law would stand in the way.

So I am left with a puzzle. There is no doubt that the brothers have alleged that Rana has [redacted], and that they seem keen to obtain evidence to support that inference. But they have not, either formally in their defence or discursively in their argument before me, produced a clear or coherent explanation of why it is a fact that would be likely to weigh in the balance when it comes to their liability.

On that basis, it seems to me, the inclusion of the [disputed] documents as a “key issue” for disclosure is at least open to question, because it is not clear in what sense it is “key”.

The defendants, however, make three further points. First, they say that the [disputed] documents will be bound to be “key adverse documents”. The basis of this submission, which was made in skeleton arguments but not developed orally, is a concession by Rana’s counsel on a previous occasion that a document showing Rana “banding [sic] around her personal information in a way that is inconsistent with her pleaded case” would be such a document. That must be right. I cannot see, however, that the [disputed] documents would fall into that category, at least generally. [Redacted text.] In short, while it is possible that the category may include known adverse documents, I do not think it can be said as a matter of logic or common sense that any [disputed] document will be such a document. On the contrary, I would expect very few to be, and probably none.

A stronger submission might be that even if not adverse for the stated reason, documents showing [redacted] would be adverse in the sense that the information they must contain “contradicts or materially damages [Rana’s] contention or version of events on an issue in dispute, or supports the contention or version of events of an opposing party on an issue in dispute, whether or not that issue is one of the agreed Issues for Disclosure”: PD 57AD, para 2.7. I think that in that paragraph “issue in dispute” must be defined as an issue on the pleaded cases; and as I have explained there is no doubt that [redacted] is such an issue, and that issue is joined.

Second, the brothers say that the documents will be relevant to an application that Rana is likely to make to give evidence by video-link from Canada. I would not regard this as a solid basis for treating them as within a “key issue” for extended search. In so far as the basis for that application relies in any way on the claim that Rana does not have and cannot obtain a travel document, then [redacted] would be relevant, though it would be most unlikely to be centrally relevant, since there is undoubtedly much more to the application than that. It would still not follow that disclosure would be ordered, and if disclosure were ordered, which would be outside the norm for such an interlocutory issue, it would I think be far more limited than Disclosure Issue [redacted]. In any case, I do not think it proper to muddle up disclosure which is necessary for the merits of the case with disclosure which may be relevant to a particular interlocutory issue.

Third, the brothers say that the documents will be relevant to credit and that—albeit exceptionally—the disclosure of documents relevant to credibility may be ordered. It would be indeed an exceptional case in which an order would be made of documents just because they go to credit. But in any case, given the wide range of disclosure that is to be given on issues which already go to credit (for example of documents that are directly relevant to her personal circumstances and the effect they had on her ability to own and manage AICO shares), the addition of this issue would not be justified. Rana has consistently declined to say [redacted]. But she has not asserted that she has not, so documents proving that she had would not significantly dent her credit.

In my view, therefore, the [disputed] documents cannot really be described as going to truly central aspects of the merits of the brothers’ defences; they appear to have, at most, marginal relevance to the important issues in the case, though undoubtedly a direct relevance to issues that have been pleaded, but which have no obvious significance to the central claims.