Khashoggi Holding Company v Maurizio Molinari & Ors

When addressing inadequate disclosure in hard-fought commercial litigation, the court must balance the litigation timetable, the need to give the defaulting party a fair opportunity to comply, and the need for a meaningful consequence if compliance remains incomplete or defective.

A substantial interim response may be appropriate without imposing an immediate strike-out or full unless order. The court may extend the disclosure deadline, require a certificate and explanatory witness statement, restrict reliance on documents disclosed late without permission, list a review hearing, and make a separate costs order.

Khashoggi Holding Company applied for relief concerning the Meta parties’ approach to their extended disclosure obligations in commercial proceedings involving allegations of fraud and dishonesty. The application sought a sufficiently effective sanction to address concerns about incomplete or inadequate disclosure.

The court considered whether to impose what the judge described as a full unless order involving strike-out or debarring consequences, or to adopt a less severe but still substantive case-management response. The central issue was the appropriate balance between allowing further compliance and ensuring that disclosure obligations were performed properly and promptly.

1. Application and relief. The court rejected the submission that a full unless order involving strike-out and debarring of defences was necessary at this stage. It nevertheless concluded that a mere new deadline, coupled with a possible future hearing, would be insufficient.
2. Balancing exercise. The relevant considerations included the substantial period remaining before trial, the limited scope for further slippage, the need within reason to set the Meta parties up to succeed rather than fail again, and the legitimate concern that their disclosure process had displayed serious deficiencies.
3. Disclosure directions. The KHC parties’ extended disclosure deadline was extended to 4pm on 8 January 2025. By the same deadline, the Meta parties were required to provide the extended disclosure then available, together with an extended disclosure list, disclosure certificate and witness statement confirming completion or identifying and explaining any incompleteness or departure from the disclosure review document.
4. Late documents. Without prejudice to the continuing obligation to disclose adverse documents, the Meta parties were not entitled to rely on documents disclosed after the deadline without permission granted on a separate application before or at trial.
5. Further hearing and costs. A further disclosure hearing was directed for 14 February 2025, subject to vacation by agreement if unnecessary. The orders were characterised as a substantial interim victory for the KHC parties. The costs of both applications were ordered to be paid by the Meta parties and summarily assessed at £19,800, payable within 14 days.