Mornington 2000 LLP (t/a Sterilab Services) & Anor v The Secretary of State for Health and Social Care

For disclosure purposes, practical or de facto control exists where the evidence establishes an arrangement or understanding that a third party will search for relevant documents or make them available for searching. The parties’ relationship is not determinative, although its nature may be relevant. Contractual assistance obligations, past provision of documents, cooperation in the litigation and other surrounding circumstances may establish the necessary arrangement. The arrangement may extend to documents favourable or unfavourable to the disclosing party and need not provide free or unfettered access. The court must apply the relevant factors with appropriate stringency and assess whether the evidence shows more than a close commercial relationship.

The defendant applied in two related claims concerning the termination of a contract for the supply of Covid-19 lateral flow test kits. The defendant alleged breaches arising from labour, health and safety, and worker-payment conditions at the Chinese manufacturer’s factory. The claimants sought substantial damages for wrongful termination and also pursued a procurement claim.

The application concerned whether documents held by the claimants’ subcontractor and sub-subcontractor, MP Biomedicals Germany GmbH and Xiamen Boson Biotech Co Ltd, were within the claimants’ control for the purposes of extended disclosure under Practice Direction 57AD. The central issue was whether the evidence established practical or de facto control over responsive documents.

1. Declaration granted. Documents held by MP Biomedicals Germany GmbH and Xiamen Boson Biotech Co Ltd which responded to the relevant disclosure categories were within the claimants’ control for disclosure purposes.
2. Control under Practice Direction 57AD includes documents in a party’s possession, documents over which it has or has had a right to possession, and documents over which it has or has had a right to inspect or take copies. Practical or de facto control may also arise from an arrangement or understanding without a legally enforceable right of access.
3. The court applied the six factors stated in Berkeley Square Holdings Limited v Lancer Property Asset Management Limited [2021] EWHC 849 (Ch), as qualified in Public Institution for Social Security v Al Wazzan [2024] EWHC 480 (Comm). The relationship is not determinative, although its nature may be relevant. An arrangement may be inferred from surrounding circumstances, including past access to documents.
4. The contractual assistance clauses, although not expressed as document-access rights, provided a firm foundation for the finding of an ongoing arrangement. They covered assistance necessary for resolving the dispute and extended to searches for documents favourable or unfavourable to the claimants. Past provision of documents, cooperation in the litigation, direct dealings and the parties’ joint-enterprise character reinforced that conclusion.
5. Free and unfettered access was not required. The question of how documents would be obtained concerned the manner in which the disclosure obligation was to be discharged, not whether control existed. The court rejected the submission that Model D disclosure was necessarily unrealistic.
6. The same conclusion applied to Bio. The evidence showed a similar arrangement, and it was appropriate to include Bio because requests to Boson might need to pass through it. Any refusal by Boson to cooperate would need to be explained and could affect the assessment of the claimants’ evidence at trial.

The judgment records that Waxman J had ordered extended disclosure primarily on Model D, with certain categories on Model C. This court determined the defendant’s remaining application and granted the declaration in modified form.