Treo Noal GP S.à r.l & Ors v Stefan Emanuel Kowski & Ors

Disclosure under PD 57AD must be directed to pleaded issues and remain reasonable and proportionate. A significant pleaded issue ordinarily warrants disclosure capable of identifying documents that support or undermine the parties’ positions. The court may require disclosure from all parties where relevant evidence may exist in internal or external documents. Model D disclosure is appropriate where the issue is important and the relevant documents cannot be defined with sufficient precision for Model C. Conversely, peripheral matters may be excluded, and disclosure may be confined to a narrower issue or Model B where that adequately addresses the pleaded case.

This was a disclosure guidance hearing following a case management conference in a high-value Commercial Court claim. The claimants allege fraudulent misrepresentations, unlawful means conspiracy and bribery concerning the acquisition and valuation of NSO, together with issues concerning the Convexum loan, the LPs’ reliance and investment sensitivities, and governance controls.

The court was asked to determine whether particular proposed matters were proper issues for disclosure, how those issues should be formulated, which parties should give disclosure, and which disclosure models were proportionate.

1. General principles. Disclosure under PD 57AD concerns documents relevant to the issues in the proceedings, including adverse documents. Extended disclosure must be reasonable and proportionate having regard to the nature and complexity of the issues, the importance of the case, the likely probative value of documents, the volume and accessibility of documents, the parties’ financial positions, and the need for a fair and expeditious resolution.
2. Issues 4, 9 and 10. The defendants’ involvement in procuring the 1 February 2019 Recommendation Letter was a distinct pleaded issue, separate from signing off the letter, and was included. Issue 9 was reformulated and issue 18 struck out. Reliance by the LPs on the NoA representations was a clear pleaded issue. Disclosure was required from all parties because relevant evidence might appear in external communications as well as the LPs’ internal documents. The possibility that a defendant held no documents did not justify avoiding the search.
3. Issues 13, 14 and 15. The Dahbash issues were confined to the purpose of the engagement and payment, the defendants’ understanding of that purpose, the services provided, and Mr Dahbash’s relationship with Francisco Partners, NSO and its group companies. Disclosure concerning the knowledge of Mr Dumont and Mr Foley was ordered on Model D. Mr Mizzi was excluded because the issue should focus on the professional directors.
4. Issues 17, 19 and 28. Governance controls were a narrow issue suitable for Model B disclosure by the claimants and the second defendant. The value of NSO between 2019 and 2023 was significant, and Model D disclosure was ordered from all parties because the underlying documents, rather than only conventional valuation materials, might support or undermine the competing valuations. The Convexum loan, insolvency, repurchase and value over time were also significant pleaded matters and were included in the first defendant’s adjusted formulation.
5. Issue 30. The LPs’ sensitivity to ESG and reputational concerns was a material pleaded issue. Model D disclosure was ordered for all parties, subject to later questions concerning documents held by or under the control of the LPs.
6. Issues 31 and 32. Earlier consideration of alternative cyber-security investments and the omission of cyber-security from the PPM were peripheral to the pleaded unlawful means conspiracy. They might be relevant to trial evidence or cross-examination, but were not reasonable or proportionate issues for disclosure.

First-instance disclosure guidance ruling following a case management conference. No appellate history was stated in the judgment.