Invest Bank PSC v Ahmad Mohammad El-Husseini & Ors

Applications to revisit or extend an order for Extended Disclosure under PD 57AD require careful identification of the applicable power. Paragraph 17 addresses actual or potential inadequate compliance and cannot be used to revisit aspects for which no such failure is shown. Paragraph 18 permits variation without prior non-compliance, but the variation must be necessary for the just disposal of the proceedings and reasonable and proportionate. The application must also be supported by the witness statement required by paragraph 18.3, which is a threshold condition.

A small disclosure return does not itself establish inadequate compliance. Further disclosure may nevertheless be ordered where there is a real possibility that relevant and probative documents have been missed, but the order must be confined to the minimum proportionate exercise.

The claimant bank pursued debt and section 423 claims arising from alleged transfers of value intended to prejudice creditors. It sought extensive further disclosure from family members and related companies shortly before trial, including re-performance of disclosure, production of family communications and bank records, collection from third parties said to be under the defendants’ control, and privilege schedules.

The applications were made principally under paragraphs 17 and 18 of PD 57AD. The central issues were whether the existing disclosure was inadequately performed, whether the original disclosure order should be varied, whether the requested exercises were necessary, reasonable and proportionate, and whether the evidential requirements for variation had been met.

1. Applicable powers. Paragraph 17 of PD 57AD is directed to a failure, or possible failure, adequately to comply with an order for Extended Disclosure. It cannot be used to revisit an aspect for which no such failure is established. Paragraph 18 is broader and does not require prior non-compliance, but the proposed variation must be necessary for the just disposal of the proceedings and reasonable and proportionate. The tests in paragraphs 17.2 and 18.2 were approached on the same basis: Ventra Investments Ltd v Bank of Scotland plc [2019] EWHC 2058 (Comm).
2. Evidence under paragraph 18.3. The requirement that an application for variation be supported by a witness statement explaining the original order and the reasons for variation is a threshold condition. The court preferred Brake v Lowes, in re Stay in Style [2020] EWHC 538 (Ch) to the more flexible approach in Cocoa Sdn Bhd v Maersk Line A/S [2023] EWHC 2168 (Comm). The privilege-schedule application therefore failed in limine, and in any event was not shown to be necessary, reasonable or proportionate.
3. Intra-family communications. The limited disclosure did not itself establish inadequate compliance under paragraph 17. However, under paragraph 18 there was a real possibility that a further review would produce relevant and probative documents. Further work was therefore necessary, reasonable and proportionate, but had to be confined. The preferred provisional approach was a manual review without keywords, subject to further discussion of a viable proportionate alternative. The period was narrowed to 1 January 2017 to 31 December 2018, and the media and searchable fields had to be defined.
4. Bank records and wider production. The requested production of bank statements, instructions and transaction records was refused. The risk that relevant material had been overlooked was materially weaker than in relation to informal family communications. The application was effectively speculative, particularly where the date, amount and counterparties of a possible transaction were unknown. The wider production orders against unrepresented defendants were also refused.
5. Third-party control. Control for disclosure requires an existing arrangement or understanding, potentially inferred from the relationship and circumstances, giving access to the documents or relevant category. The issue must be established entity by entity. Generic relationships, broad definitions and contingent orders could not justify the extensive collection orders sought.
6. Disposition. Mohammed, Ziad, Ramzy and Joan were ordered to undertake the further work concerning intra-family communications. Alexander was ordered to perform his disclosure exercise in full, with specified additional requirements, by 13 May 2024. Other relief was refused or abandoned, and otherwise the applications were dismissed.

The judgment records that the proceedings had generated earlier High Court decisions and that a pending appeal to the Supreme Court concerned other aspects of the litigation. This judgment determined the two disclosure applications at first instance.