HT-2022-000043, HT-2022-000363 - [2024] EWHC 1708 (TCC)

As to the relationship between the parties, I accept that, as compared with previous authorities, this is an unusual case for there to be practical control. However, factor (i) is clear that the nature of the relationship is not determinative and that practical control does not depend upon there being control over the holder of the documents in some looser sense, such as a parent and subsidiary relationship. There is no reason in principle why a contractor could not enjoy practical control over certain documents held by a sub-contractor or a sub-sub-contractor. Moreover, it seems to me that the relationship between Santé, Bio and Boson was a close one in the sense that they participated in what was in substance a joint venture, in seeking to be awarded contracts for the supply of lateral flow tests. And that it has been close during this litigation, which had at its commencement, and continues to have, a strong flavour of being a joint enterprise. The fact that one or more of Boson’s employees will be giving evidence for the Claimants is indicative of that. In other words, the relationship between the parties on the Claimants’ side has gone beyond a standard, arm’s length contractor/sub-contractor/sub-sub-contractor relationship.

In my judgment, the balance of the evidence shows that there is an arrangement or understanding that Boson will search for relevant documents or make documents available to be searched. Boson has an ongoing commitment to do this in the contractual assistance clause in its contract with Bio, and Bio has an ongoing commitment to secure that Boson does so, insofar as this is constitutes assistance (Boson clause) or reasonable assistance (Bio clause) with the claim. These are commitments which have been honoured by Boson prior to and during the litigation, resulting in Boson making available documentation which is critical to the claims, and also by Bio. If Santé’s need was for a search of Boson’s documents so as to produce a document or documents which would be favourable to the claims, I have little doubt that Santé would consider that Boson was obliged to conduct that search and would expect it to do so on the basis of the arrangement or understanding between the parties thus far. I have also little doubt that that search would take place. The contractual assistance clauses are, however, broader in their effect and would extend to searches for documents, favourable or unfavourable, which are necessary to the fair disposal of the claims. I would reject the proposition that assistance or reasonable assistance is confined to making available or searching for documents which are helpful to Santé’s claims.

The Defendant does not suggest that all documents held by Bio and Boson are within Santé’s control but only the documents responsive to categories in the DRD, which have been decided to be necessary to the fair disposal of the claims such that a search for them must be carried out. These are documents which are concerned with a dispute between Santé and the Defendant regarding whether the goods to be supplied by Boson via Bio would have been supplied in accordance with the contract with the Defendant.

The contractual assistance clauses are the starting point for inferring the arrangement or understanding which I find to be present in this case, but there are significant other factors which give rise to that inference, including in particular the evidence of past access to documents being provided by Boson. This may, as the Claimants submitted, have occurred only during a small number of discrete periods but the Claimants do not rely upon any instances where Boson has refused to provide access to documents and it seems to me very likely that if more requests had been made by Santé they would have been satisfied by Boson. This is a highly relevant factor, and there are others, including the initial and ongoing cooperation between the Claimants and Boson for the purposes of pursuing the claims. These matters taken together are “more specific and compelling” than there merely being a close commercial relationship between Santé, Bio and Boson which – see the dictum in Airfinance (§9 above) - would be insufficient to establish the necessary control. I do not accept that there are so many other cases in which similar factors would be present as to create a floodgates problem of the type I was warned about by Ms Hannaford.

Contrary to Ms Hannaford’s submissions, it is not necessary for the Defendant to establish that Santé, or Bio, has free and unfettered access to Boson’s documents (see Pipia, §§48 and 50-51, where Andrew Baker J explained that free and unfettered access was not a necessary precondition for control and that “how, under the consent given, the disclosing party will get hold of [the] documents” did not go to the existence of control but to “what the disclosing party can be expected and required to do so as to discharge any disclosure obligation to conduct a search for [the] documents”). I am satisfied that there is an understanding that access will be permitted and that Boson will cooperate in providing the relevant documents or copies of them or direct access to them. That documents may have been provided previously on request, rather than by Boson permitting direct third-party access to its documents, does not, contrary to Ms Hannaford’s submissions, establish that searching of Boson’s documents would not be permitted. It is for that reason also that I would reject Ms Hannaford’s submission that the declaration sought by the Defendant cannot be granted because it is unrealistic for the Claimants to carry out Model D disclosure in relation to Boson’s documents (whereas a less onerous, request-based approach might be permitted). It would be wrong for me to accept, on the current evidence, that Boson will not make its documents available for searching when requested to do so by Santé or Bio (as opposed to providing specific documents or categories of documents in response to a request). Making its documents available for searching would be providing assistance, and reasonable assistance, in relation to and in connection with Santé’s claim that the goods were to be supplied in accordance with the contract. If Boson refuses, that will need to be explained to the Defendant and ultimately to the Court, with a degree of openness which has thus far been somewhat lacking in the explanations from the Claimants’ side. Any refusal to cooperate by Boson will no doubt be a matter which can be taken into account by the Court at trial in assessing the credibility of the evidence given on behalf of the Claimants, in particular by Boson’s employees.

For the reasons already given, I find that the arrangement or understanding in this case has not been and will not in future be limited to a specific request and is more general in its nature.