KB-2025-001228 - [2025] EWHC 2506 (KB)

The White Book at paragraph 31.12.2 makes clear that the court will need to satisfy itself that there is at least a prima facie case that the documents in question are or have been in a party’s control.

I am satisfied that the Defendants can meet that threshold for these reasons.

First, the NEC Custodians are or were directors of the Claimants, and therefore agents of the Claimants. Any documents created by them in the performance of their role as directors are in the control of the Claimants. The Claimants are entitled to call for the documents of their agents, the directors. It is irrelevant what medium the directors used to create those documents. This proposition of law was not disputed by the Claimants.

Second, the Defendants have made out at least a prima facie case that because the NEC Custodians used NEC email accounts, not the Claimants’ email accounts, to conduct business on behalf of the Claimants, there must have been an arrangement, express or implied from their course of conduct, that the Claimants would be entitled to see those documents, applying the principles set out in Berkeley Square.