Treo Noal GP Sarl & Ors v Stefan Emanuel Kowski & Ors

Case management decisions should reflect the overriding objective, proportionality, fairness and the efficient use of court resources. Where a pleaded validity issue is being investigated in parallel foreign proceedings, the court may exclude it from the first trial while preserving directions for its later determination. Expert evidence requires clearly defined issues and an identified discipline. The court should not prematurely shut out a properly formulated future application. Separate defendants with distinct positions should not ordinarily be compelled to share experts in a complex, high-value claim. Narrative disclosure is justified only where there is a real prospect of relevant background documents and no real likelihood that they will emerge through disclosure on other issues. The assessment is fact-sensitive.

The claimants brought substantial claims in conspiracy, deceit and bribery, with alternative claims under Luxembourg law, arising from an investment in the NSO Group and related companies. At the first case management conference, the court addressed the proposed bifurcation of validity issues, possible cyber security expert evidence, documents allegedly held by an insolvency liquidator, the scope and sharing of expert evidence, and disclosure models.

The validity of certain claimants’ appointments was also being litigated in Luxembourg. The central case management questions were how those issues should be sequenced, whether expert and narrative disclosure proposals were sufficiently defined and proportionate, and whether the defendants should share experts.

1. Validity issues. Applying the overriding objective in CPR 1.1 and the general case management powers in CPR 3.1, the court ordered that the first trial should address all issues except whether the first, second and third claimants had validly brought the proceedings. The validity issues were being considered by the Luxembourg courts, none of the parties sought their determination in the first trial, and concurrent determination risked duplication and conflicting decisions. If they remained in dispute after judgment, the parties were to restore the case management conference for further directions. The court retained flexibility as to whether to use a stay of execution or a later discrete trial.
2. Expert evidence. No order was made for cyber security expert evidence because the proposed issues were insufficiently precise and no expert discipline or proposed expert had been identified. The court refused to prevent a later application, which would be considered on its merits. The parties could instruct experts privately, but that did not establish permission to rely on their reports or oral evidence at trial.
3. Experts and disclosure. Under CPR Practice Direction 35PD, paragraph 7, proportionality, importance, complexity, speed and cost-effectiveness were relevant to whether a single joint expert should be used. Given the seriousness and value of the allegations, the complexity of the case and the defendants’ differing positions, it was unfair to compel them to share experts.
4. Narrative documents. The test was fact-sensitive. Applying the approach stated in Bouygues (UK) Ltd v Sharpfibre Ltd and the University of Sheffield v Kudos Pharmaceuticals, the court declined to order narrative disclosure. The carefully framed disclosure issues were likely to capture documents indirectly relevant to background and context, making a wider narrative-document exercise unnecessary.
5. No declaration was made concerning control or disclosure of the NCL documents because no specific application supported by evidence was before the court.