Rana Al-Aggad v Talal Al-Aggad

A party cannot withhold documents identified by an existing disclosure search merely by asserting that the pleaded issue to which they relate is unimportant. The proper remedy is an application to vary the disclosure order under PD 57AD para 18. The applicant must show that variation is necessary for the just disposal of the proceedings and is reasonable and proportionate. Paragraph 14 addresses rights or duties to withhold particular documents or classes of documents, such as confidentiality, and may overlap with paragraph 18. Relevance and privacy cannot be assessed in isolation. Disclosure may be required where documents bear directly on a pleaded issue, while protective inspection arrangements may be ordered where necessary to safeguard privacy or confidentiality.

The claimant sought to vary an agreed and court-approved Disclosure Review Document under PD 57AD so as to remove a category of confidential documents from an issue for extended disclosure. Alternatively, she sought to withhold disclosure or restrict inspection under paragraph 14. The documents were said to concern matters bearing on her ability to participate in Saudi proceedings and manage or realise the value of shares in a Saudi company. The defendants maintained that the documents were directly relevant to pleaded issues. The central questions were whether the disclosure issue should be narrowed, whether privacy and confidentiality justified withholding disclosure, and whether inspection should be restricted.

Application to vary the DRD. The application to remove the disputed category from the Disclosure Review Document was refused.

1. PD 57AD para 18 permits variation of a disclosure order without proof of a change of circumstances. Disclosure is a continuing process, but an existing order remains binding. The party seeking variation bears the burden of showing that amendment is necessary for the just disposal of the proceedings and is reasonable and proportionate.
2. That burden applies whether the proposed variation would widen or narrow the order. Where the complaint is that an existing order is too wide, it is insufficient to show that a narrower order might have been adequate. The applicant must show positively that the existing order is disproportionate.
3. The pleadings define the factual issues in dispute. The DRD defines the ambit and extent of the searches. Once a search has been conducted, documents with the requisite probative force in relation to a pleaded issue cannot be withheld merely because the issue is said to be unimportant. The proper remedy is to apply to strike out the allegation or to vary the DRD.
4. Paragraph 14 principally concerns particular documents or classes of documents which are relevant but are subject to a right or duty of confidentiality. Paragraph 18 principally concerns a general disclosure issue said to be too wide. Where the provisions overlap, the court should not reach materially different conclusions under them.
5. Under Article 8, the court must balance privacy and confidentiality rights against the fair-trial rights of the party seeking disclosure. The denial of disclosure must be strictly necessary, but strict necessity remains a balancing exercise. Subjective privacy concerns may engage Article 8, although their objective justification and cogency are relevant to the weight of those concerns.
6. The documents were directly relevant to a pleaded issue, and their search was not shown to be burdensome or disproportionate. The claimant had not shown that secrecy was necessary or that withholding disclosure was justified.
7. Complete restriction of inspection was not justified. However, protective measures were ordered: the defendants’ solicitors were to hold the documents securely; the defendants’ solicitors were to give seven working days’ notice before inspection; inspection by the defendants was to take place at their solicitors’ offices without providing hard or soft copies; and the existing confidentiality order was to cover both the documents and their contents.