Berezovsky v Abramovich

An enhanced disclosure order is exceptional and fact-sensitive. Serious allegations, substantial sums, reputational issues and the possible absence of direct evidence may justify considering such an order, but they do not make it automatic.

The applicant should identify the documents or classes of documents sought, link them to specific issues, and explain the proposed trains of enquiry. The court should have sufficient evidence to assess the scope, burden and proportionality of the proposed searches. Where standard disclosure has not yet taken place, and no workable mechanism for a wider search is shown, the application may properly be refused without preventing a later, more focused application.

The claimant applied under Civil Procedure Rules CPR 31.5(1) for an enhanced, or “Peruvian Guano”, disclosure order. He sought a broad obligation requiring searches for documents which might advance his case, damage the defendant’s case, or lead to a train of enquiry with either consequence.

The claim concerned very substantial sums and allegations relating to the sale of Sibneft assets, proprietary interests in Rusal assets, intimidation and alleged dishonesty. The application was raised without supporting evidence and before standard disclosure had taken place.

The central issue was whether the court could and should order enhanced disclosure across the factual issues in dispute at that stage of the proceedings.

1. Application refused. The court declined to make an enhanced disclosure order at that stage, while leaving open the possibility of a later application.
2. The seriousness and nature of the allegations, the amount at stake, reputational issues and allegations of dishonesty meant that the case might ultimately be one in which enhanced disclosure was appropriate. It also fell within the description of a substantial case in the proposed reforms discussed in argument. Those matters did not, however, justify an immediate order.
3. The court had no adequate evidence identifying the documents or categories of documents that would be searched under the wider obligation, the likely extent of the search, the burden it would impose, or the enquiries to which it would relate. Standard disclosure had not yet taken place, so the court did not know what documents would emerge from that process.
4. An application for enhanced disclosure should be focused. It should identify an ascertainable category or class of documents, connect that category to specific issues, and provide some explanation of the proposed train or trains of enquiry. A request covering the whole range of issues was too broad.
5. The obligation would be onerous. A decision-maker would have to consider each document and ask whether it was reasonable to suppose that it might lead to or advance a train of enquiry. Failure to search for or disclose a document could have serious consequences, including allegations of deliberate withholding. The court therefore required a sufficiently clear basis for making such an order.
6. A later application after standard disclosure would not necessarily involve impermissible duplication. At that stage the parties would have a better understanding of the documents already disclosed and of any remaining categories requiring wider searches.

The court would hear further argument on whether the timetable should include a date for any later application for enhanced or specific disclosure.

Not stated in the judgment.