Sheikh Mohammed Omar Kassen Alesayi v Bank Audi S.A.L

Disclosure in a jurisdiction challenge is governed by a two-stage test: the applicant must establish a prima facie case on jurisdiction, and the documents sought must be reasonably necessary for the just disposal of the application. References to exceptional or unusual circumstances describe the rarity of cases meeting that test; they do not create a separate legal requirement.

Disclosure remains subject to restraint, proportionality and the overriding objective. Information asymmetry is relevant but does not justify disclosure based on speculation, curiosity or a desire to create a level playing field. On appeal, a case-management decision should be disturbed only where it is wrong or falls outside the generous ambit of reasonable disagreement.

The claimant brought a jurisdiction challenge in proceedings against a Lebanese bank concerning the transfer of funds held in Lebanese accounts. He relied on the consumer-contract provisions of the Civil Jurisdiction and Judgments Act 1982, alleging that the bank pursued commercial or professional activities in England and Wales or directed such activities there.

Master McCloud ordered disclosure of several classes of documents under CPR rules 31.12 and 31.14. Master Armstrong made a consequential order. The bank appealed under CPR Part 52, challenging both the legal test and the individual disclosure orders. The appeal proceeded by way of review. The central issues were the applicable disclosure test and whether each order was reasonably necessary and proportionate.

1. Applicable test. The appeal court held that the governing test was the two-stage test stated in Rome v Punjab National Bank [1989] 2 All ER 136: first, a prima facie, partially evidenced case on jurisdiction; secondly, disclosure reasonably necessary for the just disposal of the jurisdiction application. The claimant satisfied the first stage, which was not disputed.
2. Exceptionality. The references in Lungowe v Vedanta Resources Plc [2020] A.C. 1045 and Merrill Lynch v Citta Metropolitano di Milano [2023] EWHC 1015 (Comm) to exceptional or unusual circumstances were descriptive of the rarity of qualifying cases. They did not establish an additional exceptionality test. The Judge below therefore identified the correct legal test.
3. Discretion and proportionality. Disclosure under CPR rules 31.12 and 31.14 remained distinct. The court had to apply reasonable necessity, proportionality and the overriding objective. Information asymmetry was relevant but could not replace an evidential foundation showing that the documents might contain material relevant to the directed-activities or pursuing-activities issues. The court also had to avoid turning the jurisdiction hearing into a mini-trial, consistently with VTB Capital Plc v Nutritek International Corp [2013] 2 AC 337.
4. Orders. The appeals concerning orders 1a, 1d, 1f, 1h and 1i were allowed and disclosure was refused. The appeal concerning 1b and 1e was dismissed. The appeal concerning 1g was allowed in part: disclosure concerning the Crossbridge agreements and meeting minutes was retained, while the requests for records of non-proceeding, all planning documents and unrestricted board minutes were set aside or narrowed. Order 1k concerning the London Desk was allowed in part and replaced by a narrower order limited to documents containing evidence of relevant UK-directed or UK-based commercial activity.
5. Counsel were directed to draw up an order reflecting the judgment.

1. High Court (King's Bench Division): Master McCloud made disclosure orders on 29 July 2024 under CPR rules 31.12 and 31.14. Master Armstrong made a consequential order on 27 September 2024.
2. High Court (King's Bench Division): Permission to appeal was granted by Cotter J on 13 December 2024. The present court reviewed the orders under CPR Part 52 and allowed the appeal in part, varying or setting aside the disclosure orders as specified.