Are documents held by a third party disclosable?

22 April 2024

In the recent decision of The Public Institution for Social Security v Al-Wazzan and Others [2024] EWHC 480 (Comm), applications seeking disclosure of documents held by third parties on the basis that these were under the "practical control" of the respondents were refused by the High Court.

What are the facts of PIFSS v Al-Wazzan?

On the facts of PIFSS v Al-Wazzan, the Public Institution for Social Security (PIFSS) operates the State of Kuwait's social security and pension scheme. The First Defendant is the estate of Mr Al Rajaan who, now deceased, was the former Director General of PIFSS from 1984 to 2014. Mr Al Rajaan’s widow is the Second Defendant in her capacity as representative of the deceased’s estate.

The claim in these proceedings was for relief in respect of alleged unlawful payments by various financial institutions and intermediaries of unauthorised secret commissions procured by Mr Al Rajaan over an estimated 20-year period and believed to be in excess of US$874 million.

During the course of one of several case management conferences, the recent judgment concerned the question of whether PIFSS were required to disclose documents not currently in its possession, but in the hands of various governmental and non-governmental third parties. The resolution of that issue depended principally upon whether or not PIFSS had practical control over those documents.

What was the decision in PIFSS v Al-Wazzan?

In considering the principal disclosure application in proceedings subject to Practice Direction (PD) 57AD of the Civil Procedural Rules (CPR) — which make provision for disclosure in the business and property courts — the key question before the High Court was whether there was "practical" rather than legal control of the third party documents sought by the applicants.

In dismissing the principal disclosure application, and in deciding the central question on that application as to whether PIFSS had practical control over documents of various different third party entities or organisations, various considerations were taken into account. In particular, when considering the question of practical control, it may be appropriate to look at the picture over a number of years in relation to a relevant third party, depending upon the third party’s relationship with the respondent. The court may also take account of the different functions and roles of those third parties whose documents were alleged to be under the respondent’s practical control.

However, Mr Justice Jacobs found that there was nothing in the evidence before the court to justify a conclusion that PIFSS had, or may have, practical control over the documents in question. He also noted that in cases where documents are not under the control of the party to litigation, then procedures exist for obtaining third party documents, including from parties outside the jurisdiction.

What key points were made in PIFSS v Al-Wazzan?

One issue argued before Jacobs J was whether it was for the applicants to establish the practical control which they alleged, albeit on the basis of an inference, or whether it was for PIFSS to disprove it. However, there was nothing in the authorities which cast the onus of disproving practical control on the party who disputes that documents are within its practical control.

Furthermore, under paragraph 17 of PD 57AD, it must be for the applicant to show that there has or may have been a failure adequately to comply with an order for extended disclosure.

Legal disclaimer

The matters contained within this article are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such.

Whilst every effort is made to ensure that the information is correct, no warranty, either express or implied, is given as to its’ accuracy, and no liability is accepted for any errors or omissions.

Before acting on any of the information contained herein, expert advice should always be sought.

The Dispute Adviser

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