Brigita Morina & Ors v Elena Nikolayevna Scherbakova & Ors

Under Model D Extended Disclosure, the reference to contemporaneous documents in the disclosure provisions does not exclude documents created after the disputed events or after litigation began. The relevant question is whether documents are likely to be relevant and important for the fair resolution of the identified issues, subject to reasonable and proportionate searches.

Notes recording potential witnesses’ statements may be disclosable where they may contain evidence relevant to an issue, even if the witnesses may later give oral evidence or the notes may constitute hearsay. Case-management decisions on the scope of such searches will be upheld unless plainly wrong or outside the generous ambit of reasonable disagreement. Speculation about future satellite disputes does not justify refusing a proportionate search.

The appeals arose from two related disputes concerning the estate of Vladimir Alekseyevich Scherbakov: a probate claim concerning an alleged 2015 will and a claim concerning beneficial ownership of shares in a BVI company.

Deputy Master Teverson ordered the interim administrators to carry out a reasonable and proportionate search of attendance notes and internal emails recording investigations into the estate’s assets. The claimants appealed, arguing that the documents were not contemporaneous, could not constitute probative witness material, and would create disproportionate satellite litigation.

The central issues were the meaning of contemporaneous documents under the applicable disclosure practice direction and whether the Master’s case-management decision was plainly wrong.

1. Appeal dismissed. The order requiring a reasonable and proportionate search of the interim administrators’ internal notes was upheld.
2. Documents made contemporaneously with events will usually be more reliable than later recollections, but that principle does not make later documents irrelevant or inherently incapable of having evidential value. Admissions against interest and later conduct may be significant evidence, even where memory is not involved. The court therefore rejected an interpretation of the disclosure practice direction which confined disclosure to documents contemporaneous with the cause of action.
3. The purpose of the relevant provisions was to identify documents likely to be relevant and important for the fair resolution of the claim, subject to proportionality. Once the Issues for Disclosure had been approved, the Master was concerned with guidance on the search required by those issues, rather than with settling their definition. The parties were required to search important documents created after the disputed events, subject to any court-imposed limits.
4. The Master was entitled to conclude that the internal notes might contain relevant and important factual statements. If the persons interviewed gave evidence, the notes might assist in evaluating that evidence. If they did not give evidence, their statements might be admissible hearsay. The possibility that some material would concern credibility only, be privileged, or be inaccurate did not establish that the search could yield no probative material.
5. The decision was a case-management exercise. It could be challenged only if plainly wrong, meaning outside the generous ambit within which reasonable decision-makers might disagree. The Master was entitled to leave the precise search methodology to the interim administrators and their solicitors, who knew the material best. Speculation about future disputes concerning accuracy, relevance or redactions did not outweigh the reasonable belief that important evidence might be found.

• High Court: Deputy Master Teverson’s order dated 13 October 2022 required a reasonable and proportionate search of the interim administrators’ attendance notes and internal emails. Permission to appeal was granted.
• High Court (Property, Trusts and Probate List): The appeal was dismissed after the hearing on 2 February 2023.