Frasers Group PLC v Saxo Bank A/S & Anor

Additional disclosure should be ordered only where it is shown to be necessary for a fair trial and reasonable and proportionate in the circumstances. Applications based on passing references, speculative possibilities or a low likelihood of relevant material amount to fishing expeditions. The court may give substantial weight to the timing of an application, particularly where primary disclosure and an earlier disclosure application have already occurred. A party is not ordinarily required to revisit the scope of custodians or sources selected in an earlier disclosure order without clear evidence that critical material has been omitted. Where the application has been formulated and pursued disproportionately, that conduct may be reflected in a summary assessment of costs.

The claimant sought further disclosure from Morgan Stanley, including additional searches of audio material, searches concerning communications with Saxo, and the addition of a New York-based individual as a custodian. The applications followed primary disclosure, an earlier contested disclosure application before Bright J, and an original disclosure order by Jacobs J. The court had to decide whether the further searches and proposed custodian were necessary, just and appropriate for a fair trial, having regard to the Model D disclosure exercise and the timing and evidential basis of the applications.

1. Further disclosure refused. In relation to Mr MacLeod, the claimant accepted that paragraph 18 of the practice direction applied. The claimant therefore had to show that the further audio review was necessary. The court was far from persuaded that listening to material outside the key date range, where earlier review had yielded nothing, was necessary for disclosure to be reasonable and proportionate for trial purposes.
2. The proposed searches concerning “MA” and a passing reference to Goldman were speculative. They involved reading too much into incidental comments and were no better than fishing expeditions. The court was not satisfied that the existing disclosure fell short of a sufficient, reasonable and proportionate search.
3. The proposed searches for communications between Morgan Stanley and Saxo, and the addition of Mr Thomas as a custodian, were also refused. The post-margin-call communications strongly indicated that relevant pre-position conversations were unlikely to exist. The late timing of the application, the earlier disclosure proceedings, and the availability of substantial evidence concerning Mr Thomas since February 2023 weighed against the application. It was not demonstrated that the additional steps were necessary to do justice at trial or to establish that the Model D exercise had been conducted reasonably and proportionately.
4. The court rejected the submission that the absence of New York custodians and audio disclosure was inherently unsatisfactory. Any such challenge should have been raised when Jacobs J originally ordered disclosure, absent clear evidence from primary disclosure that a critical individual had been omitted.
5. The application was dismissed. The second defendant’s costs were summarily assessed at £120,000. The court considered that the way the application was formulated, expanded and pursued had imposed a disproportionate burden of response, while allowing for the involvement of experienced counsel.

The judgment describes earlier disclosure rulings by Jacobs J and Bright J in the same litigation. No appeal was determined in this judgment.