Banco de Sabadell SA v Cerberus Global NPL Associates, LLC & Ors

Case management should be based on the issues actually raised by the pleadings. Differences between the parties’ expert formulations of foreign law do not, without more, establish pleaded issues of extrinsic fact. Where the relevant facts are admitted and the parties’ disagreement concerns the objective meaning or effect of documents and correspondence, the issue is ordinarily one for argument rather than factual evidence.

Model B Extended Disclosure may be sufficient where the pleaded factual issues are narrow and largely documentary. Factual witness evidence should be confined to particular, tightly defined issues unless the pleadings identify material disputed facts requiring broader investigation. A general plea of common intention does not justify wider disclosure or witness evidence where no case is pleaded that private, uncommunicated intention is legally relevant.

The claimant brought commercial proceedings concerning the interpretation and effect of contracts governed by Spanish law. The pleadings referred to various matters said to be admissible under Spanish law as evidence of the parties’ intention, including payments, annual accounts, signed repurchase letters, negotiations, other agreements and efforts to register assets. The defendants also invoked Spanish law principles including contra proferentem and in favor debitoris.

The court considered the threshold case-management question of what factual issues were genuinely raised by the pleadings and therefore might justify disclosure or factual witness evidence. The ruling addressed the appropriate extent of disclosure and evidence pending directions through to trial.

1. Nature of the factual issues. The existence of differences about the precise scope of potentially relevant Spanish law doctrines was not a proxy for pleaded extrinsic facts. The claimant’s pleaded case was properly limited to specified conduct said to be admissible as evidence of contractual intention (paras 2–4).
2. Admitted facts and documentary material. The facts concerning interest, deferred purchase price payments, other agreements, asset-registration efforts and one completed payment arrangement were substantially admitted. Disputes about their objective import, or about the meaning of annual accounts, signed letters and correspondence, were matters for argument and did not themselves require extensive disclosure or witness evidence (paras 5–14).
3. Negotiation evidence. The issue whether the claimant was the proferens could justify disclosure concerning drafting and negotiation. However, as matters stood, Model B disclosure was sufficient, and it was provisionally doubted that witness evidence would be needed to describe matters likely to be evident from the documents (paras 15–16).
4. Common intention. The defendants’ reference to common intention did not presently plead that a private, uncommunicated intention was relevant under Spanish law. It therefore did not provide a basis for wider disclosure or factual witness evidence (para 17).
5. Case-management consequence. On the pleadings as they stood, the court was not persuaded that anything beyond Model B Extended Disclosure was reasonably required. Any factual witness evidence could be confined to particular, tightly defined issues. The court was minded to give directions for a trial in a late-October 2024 window, subject to any prompt application to amend the pleadings and consequent reconsideration of disclosure, evidence or trial arrangements (paras 18–21).