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

Fecha: 03-Jul-2024

The legal principles

Pursuant to the definition in Appendix 1 of PD57AD, at §1.4, a party gives disclosure by stating “that a document that is or was in its control has been identified or forms part of an identified class of documents and either producing a copy, or stating why a copy will not be produced”. For that reason, the concept of control has been said to fix the “universe” of documents from which a party’s extended disclosure must be generated (see Pipia v BGEO Group Limited [2020] 1 WLR 2582 at §13). The definition of “control” for the purposes of disclosure in PD57AD (see Appendix 1, §1.1) includes (but is not limited to) documents: (a) in a party’s possession; (b) in respect of which a party has or has had a right to possession; or (c) in respect of which a party has or has had a right to inspect or take copies. The same definition applies under CPR 31.8(2) so the authorities dealing with the question of control in the context of CPR 31.8(2) are equally relevant to the question of control for the purposes of PD57AD.

It is well-established that an arrangement or understanding which gives a party practical or de facto control of a third party’s documents is sufficient to constitute control for disclosure purposes. The parties were agreed that the relevant principles to be applied when deciding whether the categories of documents sought from Bio and Boson were within the practical control of Santé were those stated by Mr Robin Vos in Berkeley Square Holdings Limited v Lancer Property Asset Management Limited [2021] EWHC 849 (Ch), §46 as modified in one respect by Jacobs J in Public Institution for Social Security v Al Wazzan [2024] EWHC 480 (Comm), §28. The Berkeley Square principles are as follows:

“46.

Drawing all of these threads together, the following points can be made in determining whether documents held by one person are under the control of another where there is no legally enforceable right to access the documents:

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;

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 arrangement or understanding must not be limited to a specific request but should be more general in its nature.”

The qualification entered by Jacobs J was in relation to principle (i):

“.. it is not accurate to say in (i) that the relationship between the parties is "irrelevant". It would be correct to say (as illustrated by the example of parent and subsidiary) that the nature of the relationship is not determinative. However, the nature of the relationship (if any) between the parties (i.e. the party to the litigation, and the third party whose documents are alleged to be under the former's control) may well be relevant. For example, it is relevant that the nature of the relationship between PIFSS and KPMG (and indeed EY) is that of client and independent professional adviser.”

Sarah Hannaford KC urged me not to read the Berkeley Square principles “as if they were a statute”. She invited me to apply the dictum of Mr Peter MacDonald Eggers KC in Various Airfinance Leasing Companies v Saudi Arabian Airlines Corporation [2021] EWHC 2904 (Comm), §21:

"Insofar as a document is in the physical possession of a third party, meaning a person who is not a party to the action, that document is in the control of a party to the action not only where the party has a legally enforceable right to obtain access to such a document, but also where there is a standing or continuing practical arrangement between the party and the third party whereby the third party allows the party access to the document, even if the party has no legally enforceable right of such access… However, in order to establish that there is such a standing or continuing arrangement or even a specific, time-limited arrangement, whereby a third party allows a party to the action access to the document which the third party has in its possession, it is not generally sufficient to demonstrate that there is a close legal or commercial relationship between the party and third party, such as parent and subsidiary companies or employer and employee relationships; something more is required; there must be more specific and compelling evidence of such an arrangement…"

10.

Ms Hannaford also referred to the judgment of Cockerill J in Loreley Financing (Jersey) No. 30 Ltd v Credit Suisse Securities (Europe) Ltd and others [2023] EWHC 548 (Comm) where, having cited the dictum of Mr MacDonald Eggers, the Learned Judge stated that the authorities justified the conclusion that there was a "degree of stringency required", that caution was needed and the issue was not to be elided with practical control in the sense of there being an expectation of complying with a request. Cockerill J also pointed out (§32) that on an interim application such as that before me the question is whether the balance of the evidence favours the conclusion that there is practical control.