PJSC Tatneft v Bogolyubov & Ors

Applications for disclosure must be determined by the court at the interlocutory stage by reference to the overriding objective and what is necessary to deal with the case justly. The assessment is not deferred to the trial judge. Evidence forming part of the pleaded context of an alleged fraud may justify disclosure where it is sufficiently relevant, even if it is not itself the cause of action. However, evidence of other conduct is not similar fact evidence merely because it may show collaboration, control or reprehensible behaviour. Disclosure should be ordered only for issues with a proper connection to the pleaded case and sufficient potential relevance. The scope of disclosure may be recorded in a separate list where incorporating it into the general list of issues would impair that list’s utility.

The claimant, as assignee of SK, alleged that the respondents had misappropriated payments for oil through an Oil Payment Siphoning Scheme. It sought further disclosure concerning alleged connected schemes involving control of UTN, the acquisition and disposal of shares, and the use of proceeds. The application followed a case management conference at which standard disclosure had been ordered on specified issues, with provision for further applications concerning other issues arising from the statements of case. The central questions were whether the additional matters were sufficiently relevant and necessary for disclosure, and whether they should be added to the general list of issues or set out separately.

The application was allowed in part. Moulder J held:

1. Under CPR 31.5(7), the court itself must determine whether disclosure on particular issues is necessary to deal with the case justly, having regard to the overriding objective and the need to limit disclosure. The question is not deferred to the trial judge on the assumption that disproportionate material can later be disregarded.
2. The claimant’s reliance on O'Brien v Chief Constable of South Wales Police [2015] 2 AC 534 did not justify disclosure concerning the alleged ousting scheme on a similar-fact basis. That case concerned evidence of officers using the same or similar oppressive and unprofessional methods. The alleged ousting conduct was not conduct of the same or similar type as the alleged siphoning scheme. Evidence that the respondents had collaborated or used illegitimate means was therefore not similar-fact evidence.
3. The ousting scheme was nevertheless part of the pleaded context and could constitute circumstantial evidence from which unlawful conduct might be inferred. Its relevance was not excluded merely because the claimant sued as assignee of SK or because the ousting scheme was not itself the cause of action.
4. Disclosure was refused for issues 11B and 11C. Issue 11D was not pursued. Disclosure was ordered for issues 11E1, 11E2, 11F and 11G, because those matters were sufficiently connected in time or subject matter with the alleged scheme and had potential relevance to the pleaded case.
5. The disclosure issues were directed to be set out in a separate list, particularly in view of the forthcoming disclosure pilot and the risk that expanding the general list would reduce its utility.

The judgment records that, at a case management conference on 25 and 26 September 2018, Mr Justice Andrew Baker ordered standard disclosure on specified issues and permitted further applications concerning other pleaded issues. The present court determined the claimant’s subsequent disclosure application.