Mclaren Indy LLC & Anor v Alpa Racing USA LLC & Ors

A disclosure provision concerning documents mentioned in evidence is engaged only where the document is referred to, cited, or directly alluded to. A general reference to sponsorship arrangements or to the effect of a contract is insufficient, but specific references to identified sponsorship contracts may qualify.

Where a party has no control over the documents, the court has no jurisdiction under the relevant disclosure provision or CPR 3.1(2)(p) to order that party to request them from a third party. The separate non-party disclosure procedure in CPR 31.17 is not an alternative route to such an order.

The claimants applied at a pre-trial review for an order requiring the defendants to ask a third-party witness, who was outside the jurisdiction and controlled sponsorship agreements, to produce those agreements.

The application relied on references in the witness statement to contracts involving PNC Bank and DHL. The claimants argued that the references engaged paragraph 21 of Practice Direction 57AD and that the court could require the defendants to seek the documents under paragraph 21.4 or CPR 3.1(2)(p).

The central issues were whether the contracts were mentioned within paragraph 21.3 and whether the court had jurisdiction to compel a party without control of the documents to request them from a third party.

1. Documents mentioned in evidence. Paragraph 21.3 of Practice Direction 57AD requires a reference to the document, a citation of it in whole or in part, or a direct allusion to it. General references to sponsorship arrangements, contracts in general, or the effect of contracts did not satisfy that requirement. The specific references to contracts involving PNC Bank and DHL in the witness statement were sufficient, though only by a relatively fine margin.
2. No jurisdiction to compel a request. Paragraph 21.4 did not empower the court to order the defendants, who lacked control over the documents, to ask the third-party witness to produce them. Nor did CPR 3.1(2)(p) provide that jurisdiction. The court’s powers were derived from statute or delegated legislation, including the CPR, and no applicable provision authorised the proposed order.
3. Separate non-party disclosure route. CPR 31.17 provided a separate means of applying directly for disclosure against a non-party. The uncertainty whether such an order would be made, particularly because the witness was outside the jurisdiction, did not justify treating paragraph 21.4 or CPR 3.1(2)(p) as conferring a jurisdiction which they did not otherwise contain.
4. The court followed the reasoning in Various Airfinancing Leasing Companies v Saudi Arabian Airlines Corporation and agreed with the approach later adopted in The Public Institution for Social Security v Al-Wazzan. The proposed order was therefore refused.
5. The relevance and probative value of the documents were left undecided. The claimants might invite the trial court to draw inferences from their non-production, but no view was expressed on the strength of any such submission.

Not an appeal. The ruling was made at a pre-trial review in the High Court (Commercial Court).