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

A party’s duty to disclose documents is limited to documents which are or have been in his control: CPR 31.8(1). Documents are in a party’s control if (a) it is or was in his physical possession, (b) he has or has had a right to possession of it, or (c) he has or has had a right to inspect or take copies of it: CPR 31.8(2).

There is no material difference between “power” and “control” in this context: Berkeley Square Holdings Ltd v Lancer Property Asset Management Ltd [2021] EWHC 849 (Ch) at [28].

“Power” means “a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else”: Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 at 635H, per Lord Diplock.

The concept of “possession” in CPR 31.8(2)(b) covers a situation where a third party is in possession of documents as agent for the litigant: North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 at [40]. Electronically stored documents are in principle covered by the same incidents of agency: Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886 at [55]. Accordingly, documents held by an agent relating to work for the principal but held on devices or servers which are not those of the principal are in control of the principal for the purposes of CPR 31.8(1).

It is well recognised that the director of a company is both an agent and a fiduciary of the company of which he or she is a director. Accordingly, a company has the right, as a legal incident of its relationship with its directors, to require the directors to produce documents relating to the affairs of the company.

Further, documents within the control of one company may fall within the control of another, even where there is no legally enforceable right to access the documents, as a result of an “understanding or arrangement that the party who is said to have control will be able to access the documents held by the custodian one way or another, even though it may still need to be agreed precisely how that access should be achieved”: Berkeley Square at [44]. Whether there is such an arrangement or understanding can only be determined by reviewing all the relevant circumstances. However:

“…i) The relationship between the parties is irrelevant. It does not depend on there being control over the holder of the documents in some looser sense, such as a parent and subsidiary relationship;

ii)

There must be an arrangement or understanding that the holder of the documents will search for relevant documents or make documents available to be searched;

iii)

The arrangement may be general in that it applies to all documents held by the third party or it could be limited to a particular class or category of documents. A limitation such as an ability to withhold confidential or commercially sensitive documents will not prevent the existence of such an arrangement;

iv)

The existence of the arrangement or understanding may be inferred from the surrounding circumstances. Evidence of past access to documents in the same proceedings is a highly relevant factor;

v)

It is not necessary that there should be an understanding as to how the documents will be accessed. It is enough that there is an understanding that access will be permitted and that the third party will co-operate in providing the relevant documents or copies of them or access to them;

vi)

The arrangements or understanding must not be limited to a specific request but should be more general in nature”: Berkeley Square at [46].

A principal does not have control over all documents held by a third party as a result of documents within the principal’s control being “mixed” with documents which are not within the principal’s control. In the absence of consent being given to disclosure of the entire repository of documents, the court may make an order for disclosure, but this needs to reflect the fact that the disclosing party does not, as a matter of fact and practicality, have control of all of the third party’s documents. Such an order must be reasonable and proportionate and must balance the interests of the third party who holds the documents.

As the Court of Appeal recognised in Phones 4U (In Administration) v EE Ltd and Others [2021] EWCA Civ 116; [2021] 1 WLR 3270 at [37]:

“Any order relating to the disclosure of business materials mixed with personal materials engages a number of potentially conflicting interests. The need for the due and efficient administration of justice has to be balanced against the individuals’ article 8 rights of privacy. In balancing these interests, the court will seek within the bounds of the Civil Procedure Rules and the overriding objective to find a workable solution; such a solution should not be excessively costly, time-consuming or complex. In other words, the solution itself must be reasonable and proportionate.”

The order made by Roth J in that case, and upheld on appeal, was for the disclosing parties to write to certain custodians to request them to voluntarily give access to their personal mobile telephones and e-mails to e-disclosure providers who would search for work-related communications that would be passed to the disclosing party: Phones 4U at [2].

In Phones 4U the Court of Appeal noted that the case concerned an alleged unlawful agreement, which by its nature is likely to be covert and it was therefore reasonably likely that individuals would have avoided using their work devices: [38]. The Court observed that by ordering the disclosing parties to request the individuals to voluntarily provide their devices for inspection to a third party, Roth J was trying to short-circuit the need for satellite litigation, which would likely have involved further applications brought against the individuals by the disclosing parties: [42]. It was necessary for the order to be reasonable and proportionate and the safeguards built into the order, not least that the third parties could refuse the requests, satisfied this requirement: [37], [45] and [51].

Similarly, in BES Commercial Electricity Ltd v Cheshire West and Chester Borough Council [2020] EWHC 701 (QB), a party was ordered to request an employee to produce certain documents and “thereafter use its best endeavours to secure compliance with such request”: [78].