Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited

For disclosure purposes, documents held by a third party are within a litigant’s control where the litigant has either an enforceable right of access or a sufficiently specific practical arrangement for access. The court must assess the factual reality of the present relationship, including past access, cooperation and the nature of the arrangement. The capacity in which documents were originally obtained is relevant but not determinative. Different roles or “hats” do not prevent practical control where the holder now cooperates as an agent or litigation support provider. An unless order, particularly one threatening strike-out, requires a serious and deliberate breach and must be proportionate in all the circumstances.

The claimants brought claims concerning alleged unlawful information gathering. At an earlier case management hearing, the court ordered searches and disclosure of documents held by their Research Team, comprising Dr Evan Harris, Graham Johnson and Dan Waddell. The claimants later asserted that only documents obtained after the team’s formal engagement in April 2022, or voluntarily provided before then, were within their control.

The defendant applied for an unless order, relying particularly on documents potentially relevant to limitation and the claimants’ knowledge of their claims. The central issues were whether the Research Team’s documents were within the claimants’ control under CPR 31.8 and whether non-compliance justified the requested sanction.

1. Unless order. The court had power under CPR 3.1(3)(b) to specify a sanction for non-compliance. Strike-out is a powerful case-management sanction and should ordinarily be reserved for a serious and deliberate breach, subject to proportionality: Marcan Shipping -v- Kefalas [2007] 1 WLR 1864 and Global Torch Ltd -v- Apex Global Management Ltd and Others (No.2) [2014] 1 WLR 4495. The claimants’ approach was erroneous, but the evidence did not establish defiance or justify an unless order at this stage.
2. Control under CPR 31.8. A party has control of third-party documents where it has an enforceable right to obtain access or a standing, continuing or specific practical arrangement under which access is permitted. A close relationship alone is insufficient; the court must find specific and compelling evidence. The practical-control principles identified in Various Airfinance Leasing Companies -v- Saudi Arabian Airlines Corpn [2022] 1 WLR 1027 were applied.
3. The court assessed the present factual relationship, including the team’s formal engagement, specialist role, cooperation with the claimants’ lawyers, past voluntary access and an offer of full access for disclosure searches. The documents were therefore practically within the claimants’ control, including documents obtained before formal engagement. The agency authorities, including Fairstar Heavy Transport NV -v- Adkins [2013] 2 CLC 272, Amec Foster Wheeler Group Ltd -v- Morgan Sindell [2015] EWHC 2012 (TCC) and North Shore Ventures Limited -v- Anstead Holdings Inc [2012] EWCA Civ 11, supported that conclusion.
4. The original capacity in which a team member obtained a document did not govern present control. The “different hats” analysis in Loreley Financing (Jersey) No.30 Ltd -v- Credit Suisse Securities (Europe) Ltd [2023] EWHC 548 (Comm) was distinguishable on the facts. The team members did not presently hold the documents in a wholly separate capacity.
5. The claimants were required to search all documents held by the Research Team within their control, without limiting the search to particular claimants or the Knowledge Issue, and to disclose documents falling within standard disclosure. Any specific inspection restriction could be addressed under CPR 31.22. The unless application was dismissed.

The judgment was a further case-management decision in ongoing High Court proceedings. The court referred to an earlier case-management judgment dated 10 October 2025, [2025] EWHC 2573 (KB), and to the July Judgment following the Second Case Management Hearing, [2025] EWHC 1716 (KB). The present court declined to make an unless order but ordered proper searches and disclosure of documents within the claimants’ control.