Friend Media Technology Systems Limited & Anor v Jonathan Norman Friend & Anor

Specific disclosure requires more than a showing that documents may be relevant. The applicant must establish that the documents are within the respondent’s control and are of such relevance that disclosure is necessary for the fair disposal of the proceedings. The court must also ensure that any order is reasonable, proportionate and consistent with the overriding objective.

Documents created by company directors in their directorial capacity are within the company’s control, regardless of the medium used. Control may also arise from an arrangement or understanding that a third-party custodian will provide access to documents. That does not justify a wide-ranging search where the material is duplicative, marginal, primarily relevant to background or unlikely to assist at the imminent trial.

The defendants applied for specific disclosure under CPR 31.12 against the claimant companies and, alternatively, non-party disclosure under CPR 31.17 against three NEC partners and NorthEdge Capital LLP. The application concerned emails, communications and personal devices relating to the claimants’ businesses and the allegations that Jonathan Friend had breached fiduciary and contractual obligations.

The court considered whether the documents were within the claimants’ control, whether disclosure was necessary for the fair disposal of the expedited liability and injunctive-relief trial, and whether the proposed searches were reasonable and proportionate.

1. Specific disclosure dismissed. The NEC Custodians were or had been directors of the claimants. Documents created in carrying out their directorial functions were therefore within the claimants’ control because directors are company agents and fiduciaries. The medium in which the documents were created was immaterial. The defendants also established a prima facie case that an arrangement or understanding existed under which the claimants could obtain access to relevant documents held in NEC email accounts.
2. The control conclusion did not establish entitlement to disclosure. The relevant question was whether the documents were of such relevance that disclosure was necessary for the fair disposal of the proceedings. Communications involving Mr Friend or the claimants’ internal custodians had already been, or should have been, covered by existing disclosure. The remaining intra-NEC and NEC/third-party categories were largely unsupported by evidence, duplicative, concerned background issues, or related principally to matters for the later quantum trial.
3. The proposed order would in any event have been unreasonable and disproportionate. It would require searches of extensive NEC repositories containing confidential and unrelated material, depend in practice on NEC’s consent, involve substantial cost and delay, and risk diverting attention from the central issues at the expedited trial. Searches of personal devices would additionally engage Article 8 privacy rights and require appropriate safeguards.
4. The alternative non-party application became unnecessary because the control threshold was met. Had it been pursued, the same relevance, necessity, proportionality and privacy difficulties would have led to its dismissal. The defendants’ applications were dismissed.