Eurasian Natural Resources Corporation Ltd v Qajygeldin

The court’s power to order disclosure concerning compliance with disclosure obligations exists, but is exercised very sparingly. Disclosure must remain directed to matters requiring determination for the fair resolution of the claim and must be reasonable and proportionate. A party may be required to provide sufficient information to demonstrate that reasonable and conscientious searches have been undertaken. Ordinarily, however, the party need not disclose correspondence or responses obtained from third parties merely to prove the steps taken. Before the date for completing Extended Disclosure, the power to make further orders for failure to comply with an order for Extended Disclosure is not engaged.

The claimant brought a claim for breaches of confidence concerning an encrypted hard drive and confidential information allegedly obtained by the defendant. It applied for orders requiring the defendant to make further enquiries of Google, German lawyers and law-enforcement authorities concerning two email accounts and electronic devices said to have been stolen.

The defendant agreed to make enquiries and provide relevant outcomes, but resisted disclosure of the responses received and other information. The issues were whether the court had jurisdiction to order disclosure concerning compliance with disclosure duties, the principles governing that jurisdiction, and whether the orders were justified.

1. Jurisdiction. The court had an inherent jurisdiction to order disclosure in interim proceedings, including in relation to issues not arising from the statements of case. The jurisdiction under CPR PD 51U could also extend beyond pleaded issues where disclosure was needed for a fair resolution of the proceedings, as confirmed by Revenue and Customs Commissioners v IGE USA Investments Limited [2020] EWHC 1716 (Ch).
2. Claimed jurisdiction under the Pilot. Paragraph 10.3 did not empower the court to require documents proving why documents were irretrievable or evidencing the steps taken to investigate their recovery. Paragraph 17.1 was not engaged before the deadline for completing Extended Disclosure, because there had not yet been a failure to comply with the disclosure order.
3. Applicable principles. The inherent jurisdiction was to be exercised very sparingly and only where disclosure was necessary for the just disposal of the application, applying the approach stated in Harris v Society of Lloyd’s [2008] EWHC 1433. Disclosure concerning the circumstances of the alleged theft and police investigation was not pleaded and, absent exceptional circumstances, would be disproportionate.
4. The defendant remained obliged to conduct a reasonable and conscientious search for disclosable documents and to provide enough information to show that this had occurred. That did not justify disclosure of third-party responses, nor information about Google log-in attempts or recovery details unrelated to documents within the defendant’s control.
5. The claimant’s application was dismissed. The criticisms and inconsistencies identified did not justify the orders sought.