The Republic of Mozambique (acting through its Attorney General) v Credit Suisse International & Ors

In disclosure proceedings, practical control of documents may arise from the established practice by which officials or office-holders use personal accounts or devices for official communications. It is not confined to property rights or the ordinary employer–employee relationship. Once practical control exists, the court must determine the reasonable and proportionate steps required, assessed individually and in light of the documents’ importance, the quality of searches and production, and the urgency of the proceedings. A failure by an individual to respond does not itself negate practical control. Privacy protections and the possibility of foreign proceedings do not, without more, answer the disclosure question.

The claimant sought determination of its control over work-related communications and documents held on personal email accounts or devices used by former and current officials, state agents and employees. The issue arose in the context of disclosure in the wider proceedings. The court considered whether practical or legal control existed, and what steps the claimant should take in response. It found practical control over the relevant documents, but declined to make a further declaration that the claimant was in breach, leaving the reasonable and proportionate next steps to be developed.

1. Practical control. The court held that control for disclosure purposes may take the form of practical control. In this case, the established practice of officials and office-holders using personal email accounts and devices for the Republic’s communications carried with it an arrangement or understanding that access to relevant documents would be granted. That practice was sufficient, unless displaced by law or compelling contrary evidence. The conclusion went beyond the parties’ legal or commercial relationship and did not depend upon property rights, disciplinary procedures or archiving obligations (paras [5]–[17], [43]).
2. Scope of the disclosure obligation. Practical control brought the documents within the compass of the Republic’s disclosure obligations, but did not itself determine every step required. The Republic had to pursue reasonable and proportionate steps, assessing the position of each individual and the quality of any search or production. Litigation against non-compliant individuals was not necessarily required. The Republic was expected to act on its own initiative, explain what it was doing and why, prioritise important individuals, and proceed promptly given the proximity of trial (paras [28]–[30], [35]–[46]).
3. Privacy and foreign-law considerations. Constitutional protection of privacy and communications did not answer the need for reasonable and proportionate disclosure steps where official correspondence could be separated from personal correspondence. Nor did a possible discretion of the Mozambican courts prevent the finding of practical control or the taking of necessary steps (paras [31]–[33]).
4. The court made a declaration as to control, but declined at that stage to make a further declaration that the Republic was in breach. The practical-control issue was determined, while the subsequent conduct of the Republic and the relevant individuals remained to be assessed.

First-instance decision. The judgment records that it should be read with earlier judgments in the same litigation, including Judgment 4, [2022] EWHC 3054 (Comm), Judgment 6, [2023] EWHC 91 (Comm), and Judgment 7, [2023] EWHC 514 (Comm).