Berkeley Square Holdings Ltd & Ors v Lancer Property Asset Management Ltd & Ors

A party has practical control of a third party’s documents where a continuing arrangement or understanding enables it to obtain relevant documents, even without an enforceable right. The parties’ relationship is immaterial, and the arrangement may be inferred from previous access during the proceedings.

After a detailed disclosure exercise, further disclosure under paragraph 17 of Practice Direction 51U requires more than speculation that additional documents might exist. The court must identify a likelihood of probative documents and impose only reasonable and proportionate measures. A sworn disclosure statement does not prevent an order remedying inadequate disclosure.

The claimants owned a UK property portfolio managed by the first defendant. They alleged that payments to two companies beneficially owned by their former representatives had been arranged dishonestly and without their or their ultimate beneficial owner’s knowledge. The defendants maintained that the payments were known and approved.

Following an order for Model D extended disclosure, the defendants applied under paragraph 17 of Practice Direction 51U for measures to remedy alleged deficiencies. The principal issues were whether documents held by related entities and individual custodians were within the claimants’ control, whether a disclosure certificate precluded further orders, and whether the requested searches were reasonable and proportionate.

1. The application was granted in part. A sworn statement concerning possession or control does not prevent the court from ordering measures to remedy inadequate disclosure. The conclusiveness principle considered in Al-Fayed does not exclude an order for specific or further disclosure where the existing exercise appears deficient.

2. Documents held by another person may be within a litigant’s practical control without any legally enforceable right of access. There must be an arrangement or understanding that the holder will search for relevant documents or make documents available for searching. It may cover all documents or only defined classes, and may be inferred from the circumstances. Past access in the same proceedings is highly relevant, but compliance with one specific request is insufficient. The relationship between the litigant and holder is immaterial.

3. The claimants had a continuing arrangement for access to documents held by the PDP, Circle and their connected custodians, except Sheikh Khalifa. The disclosure process had proceeded throughout on the basis that relevant documents held by those persons would be available. There was insufficient evidence of a comparable arrangement concerning Sheikh Khalifa, so orders relating to his documents were refused.

4. Further disclosure under paragraph 17 of Practice Direction 51U must be reasonable and proportionate. Following an extensive certified exercise, mere speculation or an assertion that the result is implausible is insufficient. There must be some basis for finding a likelihood, rather than a mere possibility, that further probative documents exist. The court must strike a pragmatic balance between obtaining central evidence and avoiding unnecessary cost or delay.

5. The existing treatment of Dr Al Mazrouei’s documents was inadequate. His acknowledgement that he had sent potentially relevant emails made it likely that relevant sent and received material existed. The claimants were ordered to make further enquiries, harvest and review his potentially relevant documents, search relevant email accounts, and disclose non-privileged material.

6. The claimants were also ordered to request an image of Dr Abbas’s Hotmail account and conduct reliable searches, with safeguards for personal material. A structured process was ordered to agree Arabic translations of search terms and review resulting documents. A further privilege review was ordered. The remaining requests were refused or treated as unnecessary because they lacked tangible evidential support or would have been disproportionate.

This was a first-instance disclosure application and the third judgment concerning applications heard between 23 and 25 March 2021. The judgment does not state citations for the earlier rulings.