Glenn v Watson & Ors

Specific disclosure may be ordered where the documents are, or have been, within a party’s control and are relevant to pleaded issues, or there is at least a prima facie case that those requirements are met. Relevance is assessed by reference to the pleadings. Once relevance and control are established, the court exercises its discretion by considering all the circumstances and, in particular, the overriding objective. A request is not necessarily a fishing expedition merely because the applicant does not know whether responsive documents exist, provided the material makes it prima facie likely that relevant documents are held.

This judgment concerned Novatrust’s application for specific disclosure in related Chancery proceedings. Two categories of documents remained in dispute: communications concerning whether Sir Owen Glenn could influence the Corona Trust, and communications concerning proposed Wyoming trusts for his United States-based descendants. The documents were said to bear on pleaded issues including whether Sir Owen had a legitimate expectation of being consulted about trust investments, whether the trustees should have taken notice of his views, and whether he knew of changes affecting the interests of his descendants. The central issue was whether the requested documents were sufficiently relevant and whether the proposed searches amounted to a fishing expedition.

1. Applicable principles. Under CPR r 31.12, the court may order specific disclosure where documents are or have been within a party’s control and are relevant to the pleaded issues, or where there is at least a prima facie case that those requirements will be met. If those conditions are satisfied, the court has a discretion to order disclosure having regard to all the circumstances and, in particular, the overriding objective.
2. Roten communications. The communications concerning whether Sir Owen could influence the Corona Trust were prima facie relevant. They could shed light on whether he expected to be consulted about trust investments and whether that expectation was legitimate. His case that he lacked control over the trustees was not inconsistent with an expectation of consultation. The distinction between control and influence depended on the meaning given to the latter term. The application was not a fishing expedition because the documents were likely to illuminate a pleaded issue and the requested searches were limited.
3. Wyoming Trust communications. Documents concerning the reasons for proposing Wyoming trusts for Sir Owen’s United States-based descendants were potentially relevant to whether he knew that changes to the Corona and Regency Trusts had removed those descendants’ entitlement. The applicants did not need to know that responsive documents existed before seeking disclosure. Contemporaneous documents could assist the court in deciding the factual issue more reliably than inference alone. The confined request for documents supporting the suggested connection did not alter the disclosure principle.
4. The applications were granted in the form of paragraphs 17 to 20 of the draft order.

The judgment was a postscript to an earlier case-management conference judgment, handed down on 16 December 2016 and cited as [2016] EWHC 3259 (Ch). It determined the third application referred to in that judgment, namely Novatrust’s application for specific disclosure.