Pipia v BGEO Group Ltd

An order for further Extended Disclosure under the Disclosure Pilot requires proof that the variation is necessary for the just disposal of the proceedings and is reasonable and proportionate. Control of documents requires more than a party’s ability to request a non-party to obtain them from another person. Contractual terms may shape fiduciary obligations and may confer continuing rights to inspect work-related information stored on a former executive’s smartphone. A focused search of a key witness’s phone may be necessary where communications are likely to illuminate issues of good faith and the existing documentary record is limited. Broader email searches should not be ordered merely because they might produce more material.

The claimant sought further Extended Disclosure from the defendant in proceedings concerning the alleged unlawful seizure of a Georgian fertiliser plant. The application concerned email accounts and the personal mobile phones of two important witnesses, Mr Gilauri and Mr Namicheishvili.

A previous control judgment held that documents held by the defendant’s Georgian subsidiaries could be within the defendant’s control where the subsidiaries had given standing consent to provide specified documents on request. The present application required the court to determine whether the mobile-phone material was within the defendant’s control and, if so, whether further disclosure was necessary, reasonable and proportionate.

1. Applicable test. Under Practice Direction 51U, variation of an Extended Disclosure order requires the applicant to establish necessity for the just disposal of the proceedings, together with reasonableness and proportionality. The discretion is not a means of obtaining a wider search simply because additional material might exist.
2. Control of documents. Documents held by a subsidiary were within the defendant’s control under the earlier control judgment where the subsidiary had undertaken to provide documents on a properly formulated request. That did not extend to documents which the subsidiary did not possess but might itself obtain by asking another non-party. Such an approach would impose third-party disclosure by the back door.
3. Mr Gilauri’s phone. The service agreement authorised the defendant to access programmes and data held on any computer used in performing his employment duties, regardless of whether the material was personal. A smartphone fell within that wording because it held programmes and data. The right was not temporally limited to the employment period. The contractual provisions were consistent with the fiduciary background and gave the defendant control of the phone for disclosure purposes. The competing contractual arrangements with BoG did not displace that conclusion; Saltri III v MD Mezzanine SA was materially different.
4. Mr Namicheishvili’s phone. He had no contract with the defendant. The court was not prepared, on the limited evidence and in light of the Georgian-law contract and no-third-party-rights provision, to find that he owed fiduciary duties to the defendant. The indirect route through the subsidiaries failed for the same reasons as in relation to Mr Gilauri.
5. Emails and final order. The claimant had not shown that anything had gone wrong with the existing email disclosure. The proposed requests were effectively Model D requests, insufficiently focused and likely to generate false positives. Further email disclosure was therefore refused. By contrast, the focused search of Mr Gilauri’s phone was necessary, given the likely significance of WhatsApp and similar communications, the limited documentary record and the issues concerning good faith. The application was granted insofar as it related to Mr Gilauri’s phone only.