Sheikh Mohammed Omar Kassem Alesayi v Bank Audi SAL

Specific disclosure in a jurisdiction dispute is exceptional, but it may be ordered where it is reasonably necessary for a just determination and can be confined proportionately. The court must balance the swift, light-touch approach required for jurisdiction applications against the need to address a material information asymmetry. A prima facie or arguable jurisdictional case may justify disclosure where the opposing party alone possesses highly probative evidence. The court must avoid a fishing expedition or a mini-trial. Under CPR 31.14, a party may inspect documents or classes of documents genuinely mentioned and relied on in evidence, but an opponent’s assertion about documents does not itself amount to a reference by the other party.

The claimant, a customer of the defendant Lebanese bank, sought an order requiring the transfer of funds from Lebanon to Switzerland. The bank challenged the jurisdiction of the English court and applied to set aside service. The claimant sought disclosure under CPR 31.12 and CPR 31.14 to support the jurisdiction issue, particularly concerning alleged UK-directed activities, the bank’s London Desk, Crossbridge Capital, UK-addressed customers and contractual documents.

The central issue was whether disclosure should be ordered before the court determined whether the statutory consumer-contract jurisdiction gateway was satisfied.

1. Outcome. The disclosure application was allowed in part. Disclosure was ordered in relation to Crossbridge Capital, the London Desk, selected records concerning UK-addressed customers, specified employee job descriptions, certain historical customer records, customer-facing materials, the fiduciary management agreement forms and standard terms. Other requests, including broad marketing-policy and committee-minute searches, were refused as disproportionate or akin to a fishing expedition.

2. Specific disclosure in a jurisdiction dispute is exceptional, but it should be ordered where necessary to do justice between the parties, provided the order is proportionate. The court must balance proportionality, expedition and the light-touch approach in [2019] 1 WLR 3514 and [2024] I.L.Pr 7 against the overriding requirement to determine cases justly.

3. The jurisdiction court ordinarily decides whether the claimant has the better argument on the available evidence. It should use common sense and avoid turning the application into a mini-trial. Where the evidence permits no concluded view, a plausible, though contested, evidential basis may suffice. Those principles limit disclosure but do not eliminate it where the existing material is inadequate for a fair decision.

4. Information asymmetry is a material consideration. Where the jurisdiction issue concerns the defendant’s activities, documents are substantially within the defendant’s knowledge or control, and the claimant has a prima facie evidential case, proportionate disclosure may be necessary to provide a level playing field.

5. For CPR 31.14, a reference to records or materials in a witness statement may be sufficiently specific even if it is compendious, where the witness relies on the records or materials to support the party’s case. A generic reference to data does not suffice. An expression adopted merely from an opponent’s assertion is not a reference by the party for the purposes of the rule. The court may nevertheless order disclosure under CPR 31.12 where the documents are relevant, necessary and proportionate.

6. The consequential order was to be settled, including precise descriptions and date ranges. The parties were directed to liaise concerning costs budgets for the disclosure exercise.

First instance decision. No appellate history was stated in the judgment.