Bank St Petersburg PJSC & Anor v Arkhangelsky & Ors

For disclosure purposes, a party’s control of documents may arise from physical possession, a legal right to possession or inspection, or a sufficiently established practical relationship akin to agency. A document request must remain tied to the agency or nominee function. It does not extend automatically to all documents held by associated companies, and purchasers of transferred assets ordinarily hold documents in their own right. Shareholding alone does not give control of a company’s documents, save in exceptional circumstances. A clear, presently enforceable right is required before documents held by insolvency office-holders can be ordered. The court also confirmed an inherent jurisdiction to assist a corporate litigant through a McKenzie friend in exceptional cases, and directed Russian translations of expert reports where fairness and consistency required them.

This was a case-management judgment in proceedings concerning the control and ownership of the Oslo Marine Group. The defendants sought further disclosure from the claimants, individuals and companies said to have acted as nominees or agents, subsequent purchasers, and insolvency office-holders. They also disputed the wording of disclosure orders and sought Russian translations of expert reports.

The court considered the meaning of control under the Civil Procedure Rules 1998, the scope of any agency or nomineeship, the court’s jurisdiction concerning a corporate McKenzie friend, and fairness in the service and translation of evidence. The judgment records that the wider factual background had been summarised in an earlier Court of Appeal decision, [2014] EWCA Civ 593.

The defendants’ disclosure application succeeded only in part. The court directed further searches and related disclosure, refused the proposed wide-ranging search of documents held by insolvency office-holders, ordered Russian translations of expert reports, and determined the remaining legal issues subject to final drafting and further submissions.

1. Control of documents. Under the Civil Procedure Rules 1998, the court had to examine the true nature of the relationship between the litigant and the third-party document holder. Control could arise through physical possession, a right to possession, a right to inspect or copy, or sufficiently established factual control. The categories in rule 31.8 were not exhaustive.
2. Agency and nomineeship. The evidence indicated that the three individuals had acted as intermediaries and that the nominated original purchasers held the pledged shares subject to the Bank’s instructions. If English law governed, the relationships would be agency or nomineeship, or analogous to them. The Bank’s entitlement would extend only to documents entrusted to, or created by, the agents or nominees in the course of that role, excluding their own working papers. The governing Russian law had not been established.
3. Corporate documents and purchasers. Ownership or control of a company did not itself make the company an agent or give a shareholder control of its documents, except in exceptional circumstances. Subsequent purchasers acquired the shares in their own right and did not become agents merely because the transaction was disputed or they were controlled by the same individuals. Any disclosure request therefore had to be confined to documents connected with the relevant holding, transfer, voting or distribution arrangements.
4. Other directions. A major creditor’s alleged participation in creditor bodies did not establish a clear, presently enforceable right to documents held by liquidators or administrators. Under rule 31.14(a) and (b), documents mentioned in a statement of case or witness statement had to be disclosed, subject to privilege; the obligation was not limited to standard disclosure. The expert reports were to be translated into Russian because fairness, consistency and the parties’ earlier agreement favoured that course, with service by 4 pm on 13 November 2015. Exhibits to further reports were to be translated by default.
5. McKenzie friend. The court held that it had inherent jurisdiction to assist a body corporate through a McKenzie friend and, in exceptional cases, to grant that person an ad hoc right of audience. Rule 39.6 and Practice Direction 39A were not an exclusive code. A.L.I. Finance Ltd v Havelet Ltd [1992] 1 WLR 455 supported that conclusion. Watson v Bluemoor Properties Ltd [2003] BCC 382 and Avinue Ltd v Sunrule Ltd [2004] 1 WLR 634 did not bind the court because the precise issue had not been directly addressed.

The parties were directed to seek agreement on a revised order, with remaining drafting and related issues reserved for further submissions.

This was a first-instance case-management judgment. The judgment records that the factual background had been summarised in an earlier Court of Appeal decision, [2014] EWCA Civ 593, and in earlier judgments in the same matter. No further appellate history is stated.