BES Commercial Electricity Ltd & Ors v Cheshire West And Chester Borough Council

For disclosure purposes, a document is within a party’s control only where the party has possession, a right to possession, or a right to inspect or copy it. Practical cooperation or an expectation that a third party will comply with requests is not, without more, sufficient. Control may nevertheless arise from an existing legal or practical arrangement giving access to relevant documents, and the arrangement need not be contractual. Prior cooperation in another matter does not by itself establish continuing control. Search obligations must remain reasonable and proportionate, having regard to document volume, case complexity, retrieval costs and likely significance. Where the scope of electronic disclosure is unclear, the court may require further information and estimates before making a wider order.

The claimants brought proceedings against a local authority arising from an investigation into suspected fraudulent trading and alleged misconduct by a former council employee. The claims included misfeasance in public office, alleged breaches of articles 8 and 1 of Protocol 1 to the European Convention on Human Rights, trespass, conversion and declaratory relief.

The judgment concerned an unresolved dispute about disclosure. The claimants sought searches of documents held by four employees of Lancashire County Council, wider electronic searches for the defendant’s employees, and particular steps concerning the former employee, David Bourne. The central questions were whether the documents were within the defendant’s control and what searches were reasonable and proportionate.

1. Disclosure principles. CPR rules 31.6 to 31.8 governed the application. Standard disclosure covered documents on which a party relied and documents adversely affecting or supporting a party’s case. The duty to search was limited by reasonableness, assessed by factors including document volume, case complexity, retrieval cost and likely significance. The duty extended only to documents within the party’s control.
2. Documents held by Lancashire County Council. The four Lancashire employees were not custodians of the defendant because the defendant lacked the requisite control over their documents. The trading standards protocol facilitated delegation, information exchange and assistance, but created no right or presumption that relevant documents would be provided. The defendant’s use of documents and witness evidence in Lee Qualter Commercial Reduction Services Ltd v Crown Court at Preston and others [2019] EWHC 2563 did not establish continuing control. The conclusion was consistent with the principles discussed in Lonrho v Shell [1980] 1 WLR 627, Schlumberger Holdings Ltd v Electromagnetic Geoservices AS [2008] EWHC 56 (Pat), Thunder Air Ltd v Hilmarsson [2008] EWHC 355 (Ch) and Pipia v BGEO Group Ltd [2020] EWHC 402 (Comm).
3. Electronic searches. It would be disproportionate to order searches beyond work-issued devices for the defendant’s ordinary custodians before the available repositories, accessibility of Y drives, likely search burden and costs had been clarified. The defendant was ordered to provide that information and expert estimates by 17 April 2020.
4. David Bourne. An agent’s documents relating to the principal’s affairs may fall within the principal’s control. Applying North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11, the defendant was ordered to request Bourne to produce documents under his control relating to the defendant’s affairs and to use its best endeavours to secure compliance.
5. The matter was to return for a further case management conference after 17 April 2020. Outstanding disclosure, expert evidence and costs were reserved for agreement or further determination.

This was a first-instance High Court decision on disclosure and case management. No appeal or lower-court decision in this litigation is stated.