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

Both the brothers and Lama contend that Rana’s application must be an application to vary the DRD, and should fail because there are no grounds for variation under PD 57AD para 18, and indeed should fail in limine because the requirements of para 18.3 have not been met. For her part, Rana submits that para 18 is merely a “fall back”, and that her application can be dealt with under para 14. Indeed, in oral submissions at least, Mr Weekes KC, who appeared for her, went further. He contended that it was legitimate for Rana simply to decide that the [disputed] documents were not after all sufficiently relevant to the case to be disclosable at all, even as the DRD stands.

Paragraph 18 of PD 57AD empowers the court to vary disclosure orders without showing a change of circumstances, such as would often be required to vary an order (Chanel Ltd F W Woolworth & Co Ltd [1981] 1 WLR 485). In Invest Bank PSC v El Husseini [2024] EWHC 996 (Comm), [2024] Bus LR 1162, at [25], Mr Adrian Beltrami KC concluded that was indeed the effect of para 18. That was not disputed by the defendants, and I agree. I think that is a deliberate choice in the special context of disclosure. It reflects the common experience that as litigation proceeds, and more is learned about the documents and evidence, the disclosure landscape may shift without there being anything amounting to a concrete change of circumstances— that disclosure is a process rather than a moment, and requires flexibility. It also reflects a policy of encouraging parties to approach disclosure in a practical and cooperative way. The fact that the parties and the court are not “locked in” to an approach to disclosure that is set in stone facilitates that.

On the other hand, a disclosure order is still an order—requiring compliance—not simply a general guideline. And disclosure applications cannot be approached in the spirit of Groundhog Day, endlessly revisiting the same issues. So the burden lies on a party seeking a variation to justify it, and that the burden involves displacing the weight that necessarily attaches to the court’s previous conclusions. What must be justified is that the variation is “necessary for the just disposal of the proceedings” and that variation is “reasonable and proportionate”. Although that paragraph will often apply to applications to widen DRDs by imposing additional searches, and the language is most naturally appropriate to that, it is not so limited. If the complaint is that the existing order is too wide, it is not enough simply to show that a narrower order might have been sufficient: it must be shown positively that “the existing order is disproportionate such that it is reasonable and proportionate to reduce its scope”: Vannin Capital PCC v RBOS Shareholders Action Group Ltd [2019] EWHC 1617 (Ch) at [11]. I agree with the defendants, therefore, that to the extent that Rana seeks a variation of Disclosure Issue [redacted]—which she does, despite some coyness about it—she bears the burden of showing that the existing form of that issue needs to be narrowed in order to enable the “just disposal of the proceedings”.

Part of that is the requirement that the evidence supporting the application explain “the circumstances in which the original order for Extended Disclosure was made”. That must be because the circumstances are relevant. I do not, however, think that her evidence is so defective as to rule the application out of order. The requirement to explain the circumstances in which an order was made must be reasonably applied. Those circumstances are neither disputed nor complex: the DRD was agreed between the parties, based on the issues raised on the pleadings which are identified in the DRD. Mr Weekes told me, on instruction, that the concern now raised was overlooked by Rana when she agreed the issue. As to the court’s reason for approving that issue, Ms Prevezer KC was not asked to and did not give a reasoned judgment on the inclusion of this issue (but only to rule on one minor point about it, not now significant), so the court is not being asked to allow the parties to fight again over already adjudicated issues; but it was approved.

If Ms Bischof says little about the circumstances in which the DRD was approved, it is because there is little to say. In any case, since Mr Coffey has comprehensively filled any gap in Ms Bischof’s evidence in this regard, it would be the most arid elevation of form over substance not to consider the application on its merits.

I do not therefore think that the application falls at the first hurdle or for technical reasons because of a deficiency in the evidence in support of it. But in seeking to persuade me that it is necessary to vary the DRD (and in the evidence she adduces) Rana faces the obvious forensic difficulty that she identifies nothing that is remotely new or unexpected: if Disclosure Issue [redacted] is too broad, it always was too broad (including when she agreed to it); if it is likely elicit confidential or sensitive documents, it always was (including when she agreed to it), and she needs something stronger than simply esprit de l’escalier to justify its variation. The rest of the defendants’ criticisms, for instance as to the manner and timing of the application, may be relevant to costs, but do not seem to me to advance the actual argument.

Finally, I should say something about the relationship between PD 57AD para 14, and PD 57AD para 18. For obvious reasons, Rana prefers to present her argument as one under para 14, and the defendants prefer to present it as depending on para 18. In many cases the respective reach of these provisions will be obvious: para 18 will be used when the desire is to modify the scope of a search for a whole category of documents; para 14 where individual documents or classes of document, falling within the scope of an otherwise appropriate search, are to be withheld on particular grounds relating to their contents (such as privilege). But when a claim under para 14 encompasses a rather wide class, the differences inevitably lose sharpness.

However, I think that the argument here is most naturally considered, at least primarily, under para 18. Rana is not saying that particular [disputed] documents are, because of their contents, highly confidential, perhaps not even that considered one-by-one each of them is. She is saying that all of them are insufficiently relevant, and indeed that none of them is sufficiently relevant to justify disclosure at all.

Moreover, when the court is considering an application under para 14 to withhold inspection of a particular document or class of document, it will normally proceed on the basis that if the document is encompassed within a “key” issue for disclosure, it is indeed a key issue. There may still be room for argument about how significant a document is for that issue, but if a party wishes to contend that the issue in the DRD as such is not in fact “key” that needs to be treated, as in substance it is, as a request to narrow the issue itself. That is the position here. The argument is not that some documents (for example, [redacted]) is not important to Disclosure Issue [redacted]: it is that a whole category of documents expressly mentioned in Disclosure Issue [redacted] should be entirely excluded from disclosure.

I take the same approach to Rana’s submission that these documents, even though they fall within Disclosure Issue [redacted], were not in fact disclosable because they are not relevant. I think this misstates the relationship between the DRD and disclosure. It is correct that, when formulating issues for disclosure and deciding disclosure questions, the court is not bound to cover—and may not consider—every issue raised on the pleadings as a “key” issue requiring a specific kind of search. It is also correct that in deciding discretionary or evaluative issues about disclosure the question will often not be simply “could it be relevant?” but “how important to the entire case may it be?” But, once the search has been defined and conducted, I do not consider that a party could legitimately withhold a document from disclosure on the ground that, although adverse to its pleaded case or supportive of another party’s pleaded case, it is not “sufficiently” supportive to be a “key” document, because (after all) the pleaded issue to which it goes will not make a difference. A party may legitimately decline to disclose documents which, although responsive to the search, advance neither party’s case in a relevant way. But it would introduce unwarranted uncertainty into the process to permit a party to take the view that a document disclosed by a search goes squarely to a pleaded issue, but that the pleaded issue is not, after all, important.

The CPR offer different tools, appropriate to different tasks. If a party wishes to argue that a factual averment is irrelevant to the result of a case so that it should not be included in the pleadings and trial, the proper course is to apply to strike it out. Absent such an application, the court and the parties proceed on the basis of the factual issues defined by the pleadings. If a party wishes to argue that a Disclosure Issue is insufficiently material to justify a search as extensive as the DRD suggests, the proper course is to apply to vary the DRD. Absent such a variation, the DRD governs the approach to disclosure. In concrete terms, here, documents showing that Rana [redacted], if they exist, would unquestionably be disclosable documents if Disclosure Issue [redacted] remains as it is drafted and the brothers’ case remains as it is pleaded. As thing stand, therefore, they are disclosable.

In my view, read as a whole, what PD 57AD contemplates is the following:

Rana seeks, first and foremost, a systematic reformulation of Disclosure Issue [redacted] on grounds of relevance, and I think her application is best considered in that light, at least initially. But in doing so I shall also necessarily consider the things that are important for any inquiry under PD 57AD para 14.