VARIOUS AIRFINANCE LEASING COMPANIES v SAUDI ARABIAN AIRLINES CORPORATION

A party’s disclosure obligations extend only to documents within its present or former control. Documents held by a third party may be controlled through a legally enforceable right of access or a standing practical arrangement permitting access. A close employment or commercial relationship alone is insufficient.

The court has no general power under the disclosure rules to require a party lacking control to use best endeavours to obtain documents from a third party. Such jurisdiction must be conferred by legislation or the procedural rules. Even where jurisdiction exists, proportionality requires consideration of likely relevance, alternative sources, cost, privacy and practical difficulties.

The claim concerned the calculation of rent under leases of 50 aircraft. The claimants and third party sought disclosure from the defendant airline of work-related material held on mobile telephones personally owned or used by its current non-executive chairman and a former employee.

The application was ultimately framed as a request that the airline use best endeavours to secure production of the devices or their data. The central questions were whether the data were within the airline’s control, whether the court could make a best-endeavours order if control was absent, and whether such relief should be granted.

1. Application dismissed. Documents on the two mobile telephones were not within the defendant’s control. The court consequently lacked jurisdiction to order their disclosure or to require the defendant to use best endeavours to obtain them from their owners.

2. Control defines the universe of documents from which search-based disclosure under the Disclosure Pilot is generated. It includes physical possession, a legally enforceable right to possession or inspection, and a standing or specific practical arrangement under which a third party permits access. A close relationship, including employment or a parent-subsidiary relationship, does not without more establish such an arrangement. Specific and compelling evidence is ordinarily required.

3. The expert evidence did not establish that Saudi Arabian law gave the defendant a right to possess, inspect or access the data. Neither the relevant employment contracts, employment regulations, internal policies, fiduciary obligations nor the cited Saudi legislation conferred a sufficiently clear right. The English-law authorities concerning duties arising from employment did not create a presumption because the employment relationships were governed by Saudi Arabian law. The Disclosure Review Document also did not prove a standing access arrangement.

4. The court had no general jurisdiction under the Civil Procedure Rules 1998 or Practice Direction 51U to require a party lacking control to seek documents from a third party. Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 established that discovery legislation did not compel a party to seek voluntary consent or take steps to acquire a future right of access. The modern concept of control substantially overlapped with the former language of possession, custody or power. Procedural jurisdiction could not be enlarged beyond statute or delegated legislation.

5. The express best-endeavours power in Rule 58.14 for marine insurance proceedings was exceptional. Rule 31.17 separately permitted disclosure orders against a third party within the court’s jurisdiction, but did not authorise the order sought against a party lacking control.

6. Had jurisdiction existed, the application would still have been refused. Separating the defendant’s material from ministerial, state-related and private data would have involved substantial cost and practical difficulty. Emails were available from the defendant’s servers, while the volume and significance of any additional instant messages were uncertain. The likely benefit did not justify the exercise.

not stated in the judgment.