Alexander Gorbachev v Andrey Grigoryevich Guriev

An application for third-party disclosure is both a “claim” and “proceedings” for the service-out gateway in paragraph 3.1(20) of Practice Direction 6B.

Section 34 of the Senior Courts Act 1981 permits an application against a third party abroad for production of documents located in England and Wales. Such an order does not ordinarily interfere illegitimately with another state’s sovereignty. The territorial scope of the power concerning documents abroad remains open.

Applications concerning documents abroad should generally use the letter-of-request regime. Direct disclosure would be appropriate only exceptionally, if jurisdiction exists. Alternative service on a respondent in a Hague Service Convention state requires a good reason for dispensing with Convention service.

The claimant sought third-party disclosure of electronic documents held in England by Forsters LLP on behalf of two Cypriot trustee companies. HHJ Pelling QC permitted the application to be served on the trustees outside the jurisdiction under gateway (20) in Practice Direction 6B and by alternative means.

Jacobs J dismissed the trustees’ jurisdictional challenge in [2022] EWHC 1907 (Comm). The trustees appealed, contending that a disclosure application was neither a “claim” nor “proceedings”; that section 34 of the Senior Courts Act 1981 did not extend to persons abroad; and that permission for service out and alternative service should not have been granted.

The central questions concerned jurisdiction over an overseas third party, the territorial significance of the documents’ presence in England, and the proper exercise of the service discretions.

1. Appeal dismissed unanimously. An application for third-party disclosure under section 34 of the Senior Courts Act 1981 and CPR 31.17 is a “claim” and constitutes “proceedings” for gateway (20) in paragraph 3.1 of Practice Direction 6B. The expressions have a neutral, ordinary meaning. As between the applicant and third party, the application notice originates a limited set of proceedings in which the third party must respond to the asserted claim for disclosure.

2. The principle of territoriality generally requires apparently broad statutory powers to obtain documents to be construed with regard to international law, comity, enforceability and established procedures for obtaining foreign evidence. A direct order against a foreign person for documents held abroad may circumvent the letter-of-request regime and its safeguards.

3. The decisive feature here was that the documents were located in England. They had been sent to English solicitors for advice on transactions, some occurring in England. Their presence was not fortuitous. By sending the documents here, the trustees subjected them to the jurisdiction of the English court and accepted the risk that they might be ordered to be produced. Production would neither usurp another state’s authority nor create an enforcement difficulty.

4. Section 34 therefore permits an application against an overseas third party for production of documents situated in England and Wales. It was unnecessary to decide whether the section extends to documents situated abroad. Even if that wider jurisdiction exists, direct disclosure would be appropriate only exceptionally and should not be used to obtain classes of documents unavailable through a letter of request.

5. Jacobs J was entitled to permit service out. The documents’ location, their relationship to advice provided by English solicitors, and the outstanding application against Forsters justified that exercise of discretion.

6. There was also a good reason under CPR 6.15 for alternative service despite the trustees’ domicile in a Hague Service Convention state. The related application against Forsters and the imminent trial justified prompt determination. The claimant’s delay did not make the judge’s conclusion erroneous. Whether disclosure should ultimately be ordered remained for the Commercial Court.

• Court of Appeal (Civil Division): In [2022] EWCA Civ 1270 , unanimously dismissed the trustees’ appeal and upheld the orders permitting service out and alternative service.
• High Court, Commercial Court: Jacobs J held in [2022] EWHC 1907 (Comm) that the court had jurisdiction under section 34 of the Senior Courts Act 1981 and gateway (20), and that service out and alternative service were properly permitted.
• High Court, Commercial Court: HHJ Pelling QC joined the Cypriot trustees to the disclosure application and permitted service outside the jurisdiction and by alternative means.