Kazakhstan Kagazy Plc & Ors v Zhunus & Ors

The court may use its case-management powers to make a targeted specific-disclosure order where disclosure was inadequate, including where the Disclosure Pilot Scheme has replaced Part 31. The central requirement remains a proper and reasonable search for documents falling within the applicable disclosure standard. Relief should be framed realistically and proportionately, having regard to what can practically be achieved, the involvement of third parties and the procedural timetable. Where a direct order against a non-party is unavailable, the court may require the party subject to the application to seek information or cooperation from that non-party.

The claimants applied for specific disclosure in proceedings involving the Burlington respondents. Primary disclosure had been ordered under Part 31 and was due in September 2018, but the Disclosure Pilot Scheme applied by the time of the application.

The claimants contended that the respondents had failed to conduct a proper search, particularly in relation to documents held by Mills & Reeve and documents originating from AJK, the former administrator of the Jailau Trust. The court considered the adequacy of the search, the practicability of further relief, and the appropriate order for costs.

1. Power to order specific disclosure. Although Part 31 no longer applied by the date of the application, the court accepted that its case-management powers could support a proper and targeted order equivalent to specific disclosure under Part 31 where the circumstances justified it.
2. Adequacy of the search. The respondents had not conducted a proper, reasonable search for documents potentially disclosable under Part 31.6. They had made insufficient efforts to obtain and review documents held by Mills & Reeve. They had also relied on a collection of documents selected by AJK without being able satisfactorily to explain the basis of that selection.
3. Form of relief. The court declined to order a wholesale repetition of the original search or to impose the claimants’ proposed document classes and search terms. The appropriate response was targeted and proportionate. The respondents were required to complete their review of the Mills & Reeve documents by 18 April 2019 and, by 8 April 2019, to write to AJK requesting a full explanation of how the relevant hard-copy and electronic collections had been selected, with a response requested by 18 April 2019.
4. The court could not make a direct order against AJK because AJK was not a party and was no longer administering the trust. The practical limits on the court’s powers, the expedited timetable and the possibility of cooperation therefore informed the relief granted.
5. The claimants obtained some relief, but the application had been substantially wider than necessary. The costs of the specific-disclosure application were ordered to be costs in the application of the primary case.