Eurasian Natural Resources Corporation Ltd v Qajygeldin

The court considered an application by the claimant for orders requiring the defendant to disclose correspondence and information from third parties (notably Google and German police/lawyers) about two Gmail accounts and electronic devices said to be irretrievable. The judge analysed the scope of disclosure under the Business and Property Courts Disclosure Pilot (CPR Practice Direction 51U) and whether the court's inherent jurisdiction could be exercised to order the disclosure sought.

Key legal principles applied were: (1) the Disclosure Pilot limits disclosure to Issues for Disclosure and requires disclosure duties (PD51U paras 2.4, 3.1, 4.2 and 7.3); (2) the court's power to order disclosure in interlocutory proceedings exists but is to be exercised sparingly and only where necessary for the just disposal of the application (Harris v Society of Lloyd's and Rome v Punjab National Bank); (3) specific Pilot powers relied on by the claimant (PD51U paras 10.3 and 17.1) did not support an order for production of third party correspondence at this stage.

The judge concluded that (i) paragraph 10.3 does not authorise an order to produce documents evidencing steps taken to render documents irretrievable; (ii) paragraph 17.1 is not engaged because the date for giving Extended Disclosure had not arrived and a failure to comply could not yet be said to have occurred; and (iii) the inherent jurisdiction, though available, should not be exercised to compel production of the third-party materials sought because the requests were disproportionate, concerned matters not arising on the statements of case, and would distract resources from issues to be decided at trial. The claimant's application was therefore dismissed.

The claimant, a corporate parent within a mining and energy group, sued the defendant (a former Kazakh prime minister now resident in the UK) for breaches of confidence alleged to have occurred in two categories: (a) an encrypted hard drive obtained in 2012/13; and (b) confidential information acquired from a third party between 2010 and 2015. The defendant denied acquiring or using the claimant's confidential information.

The defendant said two Gmail accounts (operabus@gmail.com and operaksgb@gmail.com) and several electronic devices (a laptop, two smartphones and an iPad mini) were irretrievable: the devices had been stolen in Frankfurt in April 2016 and one Gmail account was said to be expired or inaccessible. The claimant sought an order requiring the defendant to write to Google LLC, Google Ireland and German police/lawyers and to copy the claimant into all such correspondence and any responses, and to provide specified account and device-related information.

The issues before the court were framed as:

• whether the court has power under CPR Practice Direction 51U to order disclosure of documents relevant to whether a party has fulfilled its disclosure duties;
• whether the requested orders were appropriate and proportionate in the circumstances of this case.

The judge analysed the Disclosure Pilot obligations (notably paras 2.4, 3.1, 4.2, 7.3, 10.3, 10.9, 17.1 and 20.1) and relevant authorities on the exercise of the court's power to order disclosure in interlocutory proceedings. The court held that PD51U requires parties to give sufficient information about searches and preservation steps but does not require production of third-party responses as a matter of course. Paragraph 10.3 obliges parties to engage in completing the Disclosure Review Document but does not extend to compelling documents proving the steps taken; paragraph 17.1 (which empowers orders for further disclosure steps or production) was not engaged because the timetable for Extended Disclosure had not yet matured. The judge also considered the inherent jurisdiction to order disclosure but emphasised its sparing use and the need for proportionality. Applying these principles, the judge found no basis to compel production of the third-party correspondence sought: the material requested was either not necessary to resolve issues arising on the statements of case, or was disproportionate to require at the interlocutory stage. The judge therefore dismissed the claimant's application.

The judgment records subsidiary findings on the parties' conduct: some inconsistencies and shortcomings in the defendant's instructions and correspondence were noted (for example about account status, the stolen devices and an Apple laptop), but not to a degree justifying the intrusive orders sought. The defendant agreed to provide particulars and copies of certain enquiries and results insofar as necessary to show compliance with disclosure duties. The court emphasised that disclosure obligations are confined to documents within a party's control.

The claimant's application is dismissed. The court held that the powers in CPR Practice Direction 51U relied upon by the claimant did not authorise the production of third-party correspondence sought at this stage (paras 10.3 and 17.1 were not engaged), and that the court’s inherent jurisdiction to order disclosure should be exercised sparingly; ordering the requested disclosure would be disproportionate and concerned matters not arising on the statements of case.