THE REPUBLIC OF MOZAMBIQUE v CREDIT SUISSE INTERNATIONAL AND OTHERS

For disclosure purposes, a party has control of documents held on a present or former employee’s personal email account or device where the relationship gives the party a right to possess, inspect or copy the documents. Control includes sufficient practical control and is not confined to a strict legal right.

The court may direct a party to ask non-parties voluntarily to provide access to potential disclosure sources as a case-management step. That power does not permit an order compelling a party to obtain documents which are outside its control. Where foreign law is relied on, English law may generally be assumed unless a material difference is alleged and proved.

The Republic of Mozambique opposed Credit Suisse’s application for orders requiring it to identify officials from whom consent had been sought to search personal email accounts and devices, and to identify the responses received.

The Republic relied on Various Airfinance Leasing Companies v Saudi Arabian Airlines, arguing that there was no jurisdiction unless control of the documents was first established, including under the applicable foreign law. Credit Suisse relied principally on Phones 4U (in administration) v EE Ltd and Others and argued that the orders were pragmatic case-management measures.

The central issues were the meaning of control, the effect of foreign law, and whether the requested information could be ordered before control had finally been determined.

1. Control. The court held that control under Practice Direction 51U includes a right to possession, inspection or copying which is presently enforceable, and may include sufficient practical control. Where a company, institution or state uses personal accounts or devices through its present or former employees or office-holders for business communications, the court will readily find such control where English law governs the relevant relationship.
2. Foreign law. Airfinance Leasing correctly treated control under the relevant foreign law as a factual issue requiring determination where that law was materially engaged. However, the court respectfully disagreed with its broader suggestion that, absent expert evidence, there could be no presumption of access under foreign law. English law permits the court to assume that foreign law is the same as English law unless a material difference is alleged and proved.
3. Limits of jurisdiction. Because control is the basis of disclosure jurisdiction, CPR 3.1(2)(m) could not itself justify an order requiring a party to obtain or request documents which were not within its control. The court’s power under CPR Part 31 to direct the manner of disclosure did, however, permit an order requiring a party to make voluntary requests of custodians where the documents sought were potentially within the party’s control.
4. Orders made. Credit Suisse was entitled to an order requiring the Republic to identify which listed individuals had been asked for consent and which had given consent. Consent, once sought and given, sufficiently established control for disclosure purposes. The remaining application, including the proposed third order requiring further requests or access, was not granted at that stage. Further directions, including expert and factual evidence, could be considered after the responses and subject to relevance and proportionality.