“In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors— (1) the nature and complexity of the issues in the proceedings; (2) the importance of the case, including any non-monetary relief sought; (3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence; (4) the number of documents involved; (5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates); (6) the financial position of each party; and (7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.”
“(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings. (2) The application must be supported by evidence. (3) The court may make an order under this rule only where— (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs. …”
“… ii) There must be an arrangement or understanding that the holder of the documents will search for relevant documents or make documents available to be searched; … v) It is not necessary that there should be an understanding as to how the documents will be accessed. It is enough that there is an understanding that access will be permitted and that the third party will co-operate in providing the relevant documents or copies of them or access to them. …”
“[10] It is apparent that what is required is an existing arrangement or understanding, the effect of which is that the party to the litigation from whom disclosure is sought has in practice free access to the documents of the third party, in that case the trustees. It appears that that does not need to be an arrangement which is legally binding. If it did, then there would be a legal right to possession of the documents, but it must nevertheless be an existing arrangement which, in practice, has the effect of conferring such access… [13] The position can, therefore, be summarised for present purposes in this way. First, it remains the position that a parent company does not merely by virtue of being a 100 parent have control over the documents of its subsidiaries. Second, an expectation that the subsidiary will in practice comply with requests made by the parent is not enough to amount to control. Third, in such circumstances, as Lord Diplock said in Lonrho, there is no obligation even to make the request, although it may, in some circumstances, be legitimate to draw inferences if the party to the litigation declines to make sensible requests. But that is a separate point.”
“28. I consider that [paragraph 46 in Berkeley Square], with one qualification, is a useful summary of the principles which have emerged from the case law.
“27 In summary, therefore, Saranac has been highly co-operative; whilst it considers it is under no obligation at all to conduct the searches it has conducted, it has been willing to do so in order to assist the parties and the Court. For the avoidance of doubt, it has not withheld documents identified, save, in relation to the recordings described at paragraph 2626(1) above, for recordings that were either ‘failed calls’ that were not picked up or calls received by a receptionist/personal assistant. 28. As a professional services and relationship-based business, Saranac’s approach to requests from current or former clients for documents (outside formal data subject access requests) is to give careful consideration to each request and, where there is no legal obligation to provide the information sought as here, to consider whether it is able to comply on a voluntary basis. 29. Factors that Saranac will take into account include the scope and specificity of the request, the extent of any search needed and the availability and accessibility of the data, confidential information of other clients (former and current), confidential information relating to its own business, personal data of natural persons, including its own employees (former and current) and any other competing demands on internal resources. 30. While there is no default position, or presumption in favour of provision or otherwise, Saranac is usually keen to engage positively wherever possible, just as it has done in relation to requests in these proceedings.”
“..My understanding was that you may ask Saranac to extract and send to you the audio recordings (identified in my email of17 November 2023 ), but that you have not yet done so. In your letter dated26 October 2023 , you mentioned that you had received certain requests from HSF regarding the existence of documents which may potentially be relevant to the Proceedings between your client and DB, HSF’s client, and which may be in Saranac’s possession and/or control. However, it is not clear from that letter why any documents in Saranac’s possession and/or control are relevant. If in fact you or HSF intend to request documents from Saranac, including audio recordings, please can you (or HSF) provide an explanation of the relevance of such documents to either party’s pleaded case in the Proceedings and how such disclosure is necessary in order to dispose fairly of the claim or save costs. It would also be helpful if you could at the same time provide us with copies of the core pleadings in the Proceedings. We will then be able to review the documents in the context of such an explanation and a review of those pleadings. You will appreciate that at this stage we can only provide you with an indicative estimate of our overall costs of addressing any request for disclosure, including the costs of Proskauer who would as I have mentioned provide us with appropriate support. On that broad brush basis, we estimate such costs could be about£15,000 -20,000, but they may be lower depending upon the explanation which you or HSF provide. We would expect the costs we reasonably incur addressing any request to be covered by your client or DB.”
“…To the extent these are not already in your clients' possession, please liaise with Saranac to provide all call recordings of discussions between your clients and Saranac relevant to the Proceedings, particularly but not exclusively regarding the Transactions. In this respect, please confirm that you will write to Saranac to obtain these recordings and your clients will review these recordings and disclose any relevant documents to our client as soon as practicable…”
“…2. Paragraphs 19 to 22 of your letter request disclosure of recordings of discussions between our clients and Saranac, as referred to by Saranac’s Terms of Business. 3. If such recordings exist, and as is clear from those terms, they were to be made by and for Saranac, not our clients. Those terms do not mention our clients either being required to, or opting to, record their telephone calls, and as far as we are aware (having made appropriate enquiries of our clients) they did not do so. Accordingly, no such recordings are in our clients’ possession or control. 4. Consequently, our clients are under no obligation to disclose said recordings, or to “liaise with Saranac” to obtain them, as you suggest. 5. Notwithstanding that they are under no obligation to do so, and in the interest of cooperation only, our clients have today written to Saranac, requesting that they confirm whether any such recordings exist. We shall update you once we have received Saranac’s response (which we have requested be provided within 7 days)…”. [emphasis added] HSF to QE24 November 2023 : “…5. If your clients’ position is that they will not ask Saranac to provide a copy of these documents, please explain, in detail, the basis upon which your clients refuse to do so. Any such explanation should include a description of your and your clients’ understanding of the likelihood of these documents, and in particular the Saranac Recordings, being relevant to the dispute between our clients. 6. In the context of the request set out above, we note your clients previously expressed the position that they do not have an enforceable legal right to request documents from Saranac. Whether this is correct or not (and our client is not in a position to make this assessment), your clients’ position plainly disregards the reality that your clients have, or had, a close working relationship with Saranac such that they could, at least, ask Saranac to provide copies of these documents on a voluntary basis. Your clients’ failure to do so to date remains unexplained, and, on any reasonable basis, inexplicable. 7. The documents referred to in this letter are relevant to the dispute between our respective clients. Correspondence between the parties, and apparently between your clients and Saranac, has not led to any tangible progress in this respect. To the extent your clients do not confirm that they will seek voluntary disclosure of these documents from Saranac, our client will take appropriate steps to obtain them, including by way of application to Court. Our client’s rights, including but not limited to its right to recover the costs of an application to Court, are reserved.” [Emphasis added]
“Saranac takes no position, at least at this stage”
“68.1 First, Saranac has searched for all calls across the relevant period (1 January 2018 to31 March 2020 ), involving any of the numbers of the Claimants’ key representatives (per paragraph 33 above). 68.2 Second, QE has searched for all calendar invites across the relevant period, including the word “*Saranac*”
“The court may make an order under this rule only where— (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs.”
“(i)CPR 31.17 gives no power to order a non-party to disclose documents which do not meet the threshold condition in paragraph (a) of sub-rule (3); and (ii) that cannot be circumvented by including documents which do not meet that threshold condition in a class which also includes documents which do meet that condition." …there is no objection to an order for disclosure of a class of documents provided that the court is satisfied that all the documents in the class do meet the threshold condition. In particular, if the court is satisfied that all the documents in the class (viewed individually and as members of the class) do meet that condition - in the sense that there are no documents within the class which cannot be said to be "likely to support … or adversely affect" - then it is immaterial that some of the documents in the class will turn out, in the event, not to support the case of the applicant or adversely affect the case of one of the other parties.”
“The jurisdiction to give non-party disclosure is very limited. But what the Court of Appeal has done is to pay lip service to a narrow construction, recognising the limitations in the jurisdiction, but in each of the two leading cases apply the rule in a way which walks all over the restrictions and treats it as though it was a provision of great width. It would have been easy to treat Novartis as a decision on its own facts. But by endorsing the approach taken in Novartis in a case which in many ways was an even wider application of the jurisdiction in Three Rivers, the Court of Appeal have made it impossible to argue that Novartis should be sidelined. In Novartis the problem of the irrelevant documents was overcome by stating that documents which the patent agent thought were irrelevant might nevertheless be relevant for the purpose of putting other documents in their context. This does not appear to have been a statement justified by anything in the evidence (indeed it might be thought to be contrary to the evidence). It appears to have been a fact-specific comment, which was picked up by Chadwick LJ in Three Rivers (No.4) and developed into a statement of principle. As the CPR provides for more limited disclosure than before as between the parties to litigation, it would surely be anomalous if there was different approach as against non-parties? Equally, it would be anomalous for a non-party to be under an obligation to give disclosure which is more extensive than that required to be given by the parties to litigation. But the effect of these decisions does seem to be that the burden is, at least on occasion, likely to be wider. The principles set out in Novartis and Three Rivers require the applicant to demonstrate that each individual document within a class is likely to be relevant. The somewhat generous approach taken by the court in each case to the factual determination does not bind any future court. It will certainly be possible to distinguish these two decisions wherever the collection of documents cannot be described as homogeneous, in the sense of dealing with the same subject-matter, or where it is clear that some of the documents sought are unlikely to be relevant.”
“…I understand from Ms Sharon Johal, Saranac’s Head of Legal that Saranac provided advice to PHG in relation to numerous matters, some of which had nothing at all to do with Deutsche Bank, or to do with derivative trading. Further, I understand from Ms Johal that some of the conversations comprising the Saranac Recordings will be purely administrative matters; for example, “KYC” compliance matters. Finally, from the review undertaken by Saranac described at 26(1) above, a number of the recordings do not record substantive conversations, but merely involve ‘failed’ calls, or calls between Saranac and PHG receptionists/secretaries.”