The Public Institution for Social Security v Muna Al-Rajaan Al-Wazzan & Ors

On an application for further disclosure under Practice Direction 57AD paragraph 17, the applicant must first show that there has been, or may have been, inadequate compliance, and then that the proposed order is reasonable and proportionate. “Likely” means a real possibility, not more likely than not.

Documents held by third parties are within a party’s practical control only where there is an enforceable right or a specific standing arrangement giving access. A close relationship, past cooperation, common lawyers, or failure to request documents is insufficient by itself. Each third party and relationship must be assessed separately. Without control, the court cannot order a party to seek documents from the third party. Further searches and custodians are ordered only where a concrete disclosure failure and proportionality are shown.

These were interlocutory disclosure applications in proceedings concerning alleged secret commissions paid through financial institutions and intermediaries. The principal application by the Man Defendants, supported in part by the First and Second Defendants, sought disclosure of documents held by Kuwaiti governmental bodies, professional advisers and related entities on the basis that PIFSS had practical control over them.

EFG sought further searches and information concerning former non-executive directors. PIFSS sought the addition of custodians and further searches against other defendants. Earlier decisions in the proceedings included freezing and proprietary relief in [2019] EWHC 2886 (Comm) and disclosure concerning Swiss materials in [2023] EWHC 1065 (Comm). The central issues were the meaning of practical control, the court’s jurisdiction to require requests to third parties, and whether further disclosure steps were reasonable and proportionate.

Disposition. The applications were granted in part and otherwise dismissed or refused. The court rejected the principal claims that PIFSS controlled documents held by the Kuwait Attorney General, the Department of Legal Advice and Legislation, the Kuwait State Audit Bureau, parliamentary committees, KPMG, EY or WAFRA. PIFSS’s applications succeeded in adding Mr Ritzi as a custodian for Man and Ms Clarke as a custodian for Pensée, and in requiring focused searches using “Lulienne” and its derivatives.

1. Under Practice Direction 57AD paragraph 17, the applicant must first establish that there has been, or may have been, a failure adequately to comply with an existing disclosure order. It must then establish that the further order is reasonable and proportionate. “Likely” denotes a real possibility that further documents exist, rather than a balance-of-probabilities test.
2. Practical control requires either a presently enforceable legal right to obtain the documents or a standing, continuing or specific arrangement under which the third party permits access. A close legal or commercial relationship, including parent and subsidiary status, common legal representation, or previous compliance with specific requests, is not enough. The issue must be analysed separately for each third party, having regard to its function and relationship with the litigating party.
3. The applicant bears the burden of establishing practical control. Failure to make a request cannot alone justify an inference of control, although it may assist where other strong factors exist. Where documents are not within the party’s control, the court has no jurisdiction to order that party to use best endeavours or request the third party to produce them. The approach in Various Airfinance was followed on that issue.
4. At the interlocutory stage, responsible disclosure evidence should not ordinarily be subjected to further interrogation merely to test whether the process was properly conducted. Further evidence or investigation requires a concrete basis for believing that something has gone wrong, and must remain proportionate.
5. The working papers of a professional adviser remain the adviser’s documents absent a contractual right to them. A client–professional adviser relationship is not an agency relationship merely because the adviser is a subsidiary or has supplied final work product. The searches and proposed custodians had to be focused on the real possibility of responsive documents and the burden of review.

This was a first-instance interlocutory decision on disclosure. No appeal from this judgment is stated. The judgment refers to earlier decisions and case-management steps in the same proceedings, including [2019] EWHC 2886 (Comm) and [2023] EWHC 1065 (Comm).