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

The disclosure review document (“DRD”) was settled by Ms Sue Prevezer KC, sitting as a Deputy High Court Judge, at a case management conference on 11 December 2024. Disclosure Issue [redacted text]:

That extended disclosure was to be given by Rana only, following Model D—narrow search based disclosure. That entails a “reasonable and proportionate search” for documents which “are likely to support or adversely affect its claim or defence or that of another party”. In the absence of any order, narrative documents were to be excluded, if possible: see PD 57AD 8.3.

The DRD identified the pleaded issues to which Disclosure Issue [redacted] related as: paragraphs 2, 6, 7 and 8 of the particulars of claim; paragraph 5 of the confidential annex to the particulars of claim; paragraphs 3, 5, and 6–8 of the brothers’ defence; paragraph 7 of the confidential annex to the brothers’ defence; and paragraphs 5-6 of Lama’s defence.

Paragraph 2 of the particulars of claim states:

“The Claimant is Ms Rana Al-Aggad (the ‘Claimant’). Until August 2005, the Claimant principally resided in Saudi Arabia. Since then, she has resided in, Canada. The Claimant and the Defendants are siblings.”

Paragraph 3 of the brothers’ defence admits that paragraph, except that it puts Rana to proof that she has resided in Canada since 2005 (though it puts forward no alternative positive case, and paragraph 2 of the agreed common ground records as common ground that Rana “left Saudi Arabia in 2005, following which [she] resided in Canada”).

Paragraph 6 of the particulars of claim states:

“In 2005, the Claimant and her parents left Saudi Arabia, and moved to Canada. On 12 July 2011, the Canadian Immigration and Refugee Board granted the Claimant refugee status. The reasons for the Claimant’s departure from Saudi Arabia and grant of refugee status (‘the Claimant’s Circumstances’) are provided in the Confidential Annex.”

Paragraph 5 of the brothers’ defence admits the first two sentences. It also admits that Rana’s “own summary” of her reasons for leaving Saudi Arabia and being granted refugee status are set out in the confidential annex. To the extent those matter, I deal with them below.

Paragraph 7 of the particulars of claim alleges:

“The Claimant held when leaving Saudi Arabia, and continues to hold, Saudi citizenship. The Claimant formerly held a Saudi passport, which expired on 27 September 2007 and was never renewed.”

That is addressed in paragraph 6 of the brothers’ defence. Rana’s Saudi citizenship is admitted. They make no admission as to her Saudi passports (what passport she held, when it expired, or whether it was renewed). But they say that if it was not renewed that was Rana’s choice. They make further allegations (based on inference, which they explain): [redacted text].

Paragraph 8 of the particulars of claim alleges:

“On account of the Claimant’s Circumstances, from 2005 she has been unable to:

8.1

acquire a National ID card or renew her Saudi passport, as the issue of these documents required the Claimant (1) to be physically present in Saudi Arabia to provide a photograph and fingerprints for the purposes of obtaining a National ID Card and (2) to have a National ID Card as a condition of obtaining a Saudi passport;

8.2.

personally pursue or participate in litigation, or execute any transaction that requires her physical presence in Saudi Arabia; or

8.3.

execute a valid Saudi power of attorney (‘POA’) (whether for the purposes of commencing proceedings or authorising someone to execute documents on her behalf) for the reasons set out in the judgment of Cockerill J in these proceedings dated 22 March 2024 [2024] 4 WLR 35.”

That is addressed in paragraph 8 of the brothers’ defence. It contains a series of denials. It does not raise any question of primary fact. It takes issue as a matter of law or practice with the suggestion that Rana needed to be physically present in Saudi Arabia in order to acquire a National ID or renew her Saudi passport, and points out that on Rana’s own case she had a valid Saudi passport until 2007. It does not rely on any allegation about [redacted].

Although it is referred to in the DRD, paragraph 7 of the brothers’ defence does not seem to me to be germane to Disclosure Issue [redacted]. It sets out a set of conclusions that the brothers say will follow if Rana “fails to prove” that she attempted to create a valid power of attorney in various ways. It does not, either expressly or by obvious inference, refer to any power of attorney under Canadian law, or for which [redacted] would matter (noting that “POA” is a defined term in the particulars of claim, meaning “valid Saudi power of attorney”).

Paragraph 5 of the confidential annex to the particulars of claim alleges various matters that are not directly relevant to this application. It is addressed in paragraph 7 of the confidential annex to the brothers’ defence, which admits that Rana left Saudi Arabia in 2005, and was granted asylum in July 2011 (matters already admitted on the non-confidential pleadings). None of the other matters in that paragraph is pertinent to this application.

In summary, therefore, the paragraphs referred to in the DRD to explain the focus of Disclosure Issue [redacted] consist of a mixture of admissions and points in issue. What is admitted is that Rana left Saudi Arabia in 2005, went to Canada, and was granted asylum in 2011. Although it is not formally admitted, there seems really to be no dispute that she has lived in Canada since 2005; there is no suggestion to the contrary. So far as her Saudi Arabian documents are concerned, there is no admission that Rana either had a passport which was valid until 2007, or that she has not had one since—but the thrust of the brothers’ case on this point is that she could have had one if she had wanted to, without needing to return to Saudi Arabia, and that she could have managed business in Saudi Arabia without one. So far as [redacted] the brothers positively alleged [redacted].

The reply (which is not referred to in the DRD, but seems to me to be relevant) takes issue with the contention that the claimant could travel to Saudi Arabia or conduct business. There is a partial admission (in that Rana accepts that until 2020 she could, as a woman, have renewed her passport outside Saudi Arabia, though she says that her “circumstances” made that impossible). The reply does not directly engage with the allegations about [redacted] documents, which are encompassed therefore in the general joinder of issue. In a draft amended reply, Rana wishes to insert a paragraph which says that she “does not plead” to those allegations because they are irrelevant. I do not think that makes any difference. If a reply does not admit an allegation, issue is joined; and it is joined just as effectively by a “refusal to plead” as by an express non-admission, or denial. There has been no application at any time to strike out the allegations about [redacted] made in paragraph 6 of the brothers’ defence.

It is therefore clear that—perhaps with the exception of the inquiry into [redacted], which does not appear to relate to any pleaded issue—Disclosure Issue [redacted] can fairly be said to relate to pleaded issues. How far they are important pleaded issues, in the sense of being likely to affect the outcome of the action, is a different matter, to which I shall return.