Cobussen Principal Investment Holdings Ltd v Akbar & Ors

Disclosure must be directed to the issues raised by the pleadings and ordered for trial. A list of disclosure issues is ordinarily a practical summary of those issues, rather than a device for excluding pleaded matters, unless the order clearly provides otherwise.

Parties must conduct proper searches, including proportionate searches of electronic material. Solicitors must take an active role in collecting and reviewing documents. Where relevant documents were formerly in a party’s control and may be held by third parties, the court may require the party to request them and disclose the resulting correspondence. Proportionality remains central, but is assessed against the value, importance and factual complexity of the dispute.

The claimant, a judgment creditor, sought a final charging order over a London property to enforce a substantial judgment debt owed by the first defendant. The property was legally owned by the second defendant, and the claimant alleged that the first defendant had a beneficial interest in the property or was the beneficial owner of the second defendant.

The court had previously directed a trial of those issues and ordered disclosure. The claimant applied for further disclosure, including electronic searches, searches of documents held by former directors and requests to banks, solicitors, trustees and other third parties. The defendants argued that the agreed list of disclosure issues and the earlier order limited disclosure, and that the further requests were disproportionate or concerned documents outside their control.

1. Application granted in substantial part. The claimant’s reformulated disclosure application was within the court’s power and proportionate. The parties were directed to draw up an order reflecting the judgment, including appropriate time limits and costs provisions.
2. The earlier order and agreed list of disclosure issues did not impose an artificial limit on disclosure. The list was to be construed as a summary of the issues arising from the pleadings. Its meaning was to be resolved by reference to the issues ordered to be tried and the pleaded cases. It was wide enough to cover the documents sought.
3. The defendants had not demonstrated that proper disclosure had already been given. The court was entitled to scrutinise the disclosure evidence carefully in light of the incomplete explanations, late evidence and gaps in documents relating to the acquisition and refinancing of the property.
4. The solicitors had not been sufficiently involved in the disclosure process. Following the approach in Suez Fortune Investments Ltd v Talbot Underwriting Ltd [2016] EWHC 1085 (Comm), they were required to collect available electronic material, review it and ensure that proper disclosure was given. The absence of an electronic disclosure regime in the earlier order did not remove that obligation.
5. The court could require the respondents to make requests to third parties for documents which had formerly been within their control and might be relevant. The approach in North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 supported such an order. Requests to banks, professional advisers, trustees, nominees and former directors were justified where there was good reason to believe that relevant documents might be held by them.
6. The further searches and requests were proportionate. The dispute concerned a substantial debt and a valuable property, while the relevant transactional documentation was likely to be limited. The order was confined to relevant documents and did not require disclosure of every search result.
7. The respondents were ordered to provide information about their email accounts, make specified third-party requests, disclose the requests and resulting correspondence, and provide electronic material to their solicitors for disclosure review. Certain wider requests were refused or were not pursued.