“17.1 Where there has been or may have been a failure adequately to comply with an order for Extended Disclosure the court may make such further orders as may be appropriate, including an order requiring a party to— (1) serve a further, or revised, Disclosure Certificate; (2) undertake further steps, including further or more extended searches, to ensure compliance with an order for Extended Disclosure; (3) provide a further or improved Extended Disclosure List of Documents; (4) produce documents; or (5) make a witness statement explaining any matter relating to disclosure. 17.2 The party applying for an order under paragraph 17.1 must satisfy the court that making an order is reasonable and proportionate (as defined in paragraph 6.4).”
“6.4 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.”
“Two points are made by Ms Farrell. The first is that the searches were too narrow to ensure the capture of all relevant documents. This essentially misunderstands the purpose of keyword parameters. The whole point of keywords is to reduce an unmanageable universe of documents to one susceptible of a manual search. In this case, the keyword and date parameters reduced an unmanageable 2 million documents to a manageable 30,000. Were relevant documents missed? Some may have been. But that is not the question. The question is whether a reasonable and proportionate search has been undertaken. Part of that process is reducing the unmanageable document universe to a universe that can be (in this case) manually reviewed through an electronic process. The issue is as Morgan J described it in Digicel (St Lucia) Ltd v. Cable & Wireless plc,[2008] EWHC 2522 (Ch) at [80]: “If one were to adopt the ‘leave no stone unturned’ approach to disclosure then one would be more ready to add keywords to those originally used by the defendants. However, it will usually be wrong in principle to adopt that approach and, in my judgment, it would be wrong to adopt that approach in the circumstances of this case. One therefore has to consider the proportionality of adding an additional keyword. For that purpose one has to form some sort of view as to the possible benefit to the claimants of adding the keyword and the possible burden to the defendants of doing so. The burden to the defendants will principally consist of the burden of manually reviewing a large number of irrelevant documents.””
“86. It is possible to distil the following propositions from the authorities on challenges to claims to privilege:- (1) The burden of proof is on the party claiming privilege to establish it: see Matthews & Malek on Disclosure (2007) 11-46, and paragraph [50] above. A claim for privilege is an unusual claim in the sense that the party claiming privilege and that party’s legal advisers are, subject to the power of the court to inspect the documents, the judges in their or their own client’s cause. Because of this, the court must be particularly careful to consider how the claim for privilege is made out and affidavits should be as specific as possible without making disclosure of the very matters that the claim for privilege is designed to protect: Bank Austria Akt v Price Waterhouse; Sumitomo Corp v Credit Lyonnais Rouse Ltd (per Andrew Smith J). (2) An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in an affidavit are not determinative and are evidence of a fact which may require to be independently proved: Re Highgrade Traders Ltd; National Westminster Bank plc v Rabobank Nederland. (3) It is, however, difficult to go behind an affidavit of documents at an interlocutory stage of proceedings. The affidavit is conclusive unless it is reasonably certain from: (a) the statements of the party making it that he has erroneously represented or has misconceived the character of the documents in respect of which privilege is claimed: Frankenstein v Gavin’s House to House Cycle Cleaning and Insurance Co, per Lord Esher MR and Chitty LJ; Lask v Gloucester Health Authority. (b) the evidence of the person who or entity which directed the creation of the communications or documents over which privilege is claimed that the affidavit is incorrect: Neilson v Laugharane (the Chief Constable’s letter), Lask v Gloucester HA (the NHS Circular), and see Frankenstein v Gavin’s House to House Cycle Cleaning and Insurance Co, per A L Smith LJ. (c) the other evidence before the court that the affidavit is incorrect or incomplete on the material points: Jones v Montivedeo Gas Co; Birmingham and Midland Motor Omnibus Co v London and North West Railway Co; National Westminster Bank plc v Rabobank Nederland. (4) Where the court is not satisfied on the basis of the affidavit and the other evidence before it that the right to withhold inspection is established, there are four options open to it: (a) It may conclude that the evidence does not establish a legal right to withhold inspection and order inspection: Neilson v Laugharane; Lask v Gloucester Health Authority. (b) It may order a further affidavit to deal with matters which the earlier affidavit does not cover or on which it is unsatisfactory: Birmingham and Midland Motor Omnibus Co Ltd v London and North West Railway Co; National Westminster Bank plc v Rabobank Nederland. (c) It may inspect the documents: seeCPR 31.19 (6) and the discussion in National Westminster Bank plc v Rabbo Bank Nederland and Atos Consulting Ltd v Avis plc (No. 2). Inspection should be a solution of last resort, in part because of the danger of looking at documents out of context at the interlocutory stage. It should not be undertaken unless there is credible evidence that those claiming privilege have either misunderstood their duty, or are not to be trusted with the decision making, or there is no reasonably practical alternative. (d) At an interlocutory stage a court may, in certain circumstances, order cross-examination of a person who has sworn an affidavit, for example, an affidavit sworn as a result of the order of the court that a defendant to a freezing injunction should disclose his assets: (House of Spring Gardens Ltd v Wait; Yukong Lines v Rensburg; Motorola Credit Corp v Uzan (No. 2)). However, the weight of authority is that cross-examination may not be ordered in the case of an affidavit of documents: Frankenstein’s case; Birmingham and Midland Motor Omnibus Co Ltd v London and North Western Railway Co and Fayed v Lonrho. In cases where the issue is whether the documents exist (as it was in Frankenstein’s case and Fayed v Lonrho) the existence of the documents is likely to be an issue at the trial and there is a particular risk of a court at an interlocutory stage impinging on that issue.”
“Discovery affidavits are no longer made under the CPR. But the new procedure is not in this regard different in substance, because the client will be obliged to verify the search, and compliance with his disclosure obligations in circumstances in which a false verification may lead to sanctions in contempt or the action being struck out. In West London Pipeline and Storage, the court was considering whether to require a party to produce documents in relation to which a disputed claim for privilege was made. The position was in one sense rather more straightforward: if the court is not satisfied on the evidence or affidavit provided, it should hold that the party claiming privilege has not satisfied the burden of proof and order disclosure. So the problem is much less acute than where a party is verifying disclosure and insisting that disclosure is adequate but the court is not so satisfied. Here, the court is limited in its weaponry in dealing with the person who fails to give disclosure but insists that he has done. At the interlocutory stage, the court will not order cross-examination and the verification is for practical purposes conclusive. If the person who verified the disclosure gives evidence, he can be cross-examined on the disclosure and his verification. But if he does not give evidence, it seems the other party may be in no better position at trial. The CPR has not taken the opportunity to deal with the problem specifically.”
“Insofar as a document is in the physical possession of a third party, meaning a person who is not a party to the action, that document is in the control of a party to the action not only where the party has a legally enforceable right to obtain access to such a document, but also where there is a standing or continuing practical arrangement between the party and the third party whereby the third party allows the party access to the document, even if the party has no legally enforceable right of such access… However, in order to establish that there is such a standing or continuing arrangement or even a specific, time-limited arrangement, whereby a third party allows a party to the action access to the document which the third party has in its possession, it is not generally sufficient to demonstrate that there is a close legal or commercial relationship between the party and third party, such as parent and subsidiary companies or employer and employee relationships; something more is required; there must be more specific and compelling evidence of such an arrangement…”
“[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. [14] Fourth, however, a party may have sufficient practical control in the sense which the Schlumberger and North Shore cases [North Shore Ventures Ltd v Anstead Holdings Inc[2012] EWCA Civ 11 ] indicate, if there is evidence of the parent already having had unfettered access to the subsidiary’s documents or if there is material from which the court can conclude that there is some understanding or arrangement by which the parent has the right to achieve such access.”
“It is merely the evidence of the normal relationship that one would expect between a parent and subsidiary without the particular features of the Schlumberger or North Shore cases. Such co-operation as there may have been in the past as to compliance with specific requests, for example production of certain of the licences in issue, does not, in my judgment, amount to evidence that ENRC has the necessary control in the sense which the cases show is necessary over Bamin’s documents. It does not indicate that ENRC would be entitled to send its solicitors into Bamin’s premises and to insist on searching Bamin’s computers, applying the kind of word search terms and insisting on production of the computers of various individuals which would be necessary in order to enable that to be done. There is no evidence as far as I can see that that has happened so far, as distinct from specific documents being provided in response to a specific request.”
“Drawing all of these threads together, the following points can be made in determining whether documents held by one person are under the control of another where there is no legally enforceable right to access the documents: i) The relationship between the parties is irrelevant. It does not depend on there being control over the holder of the documents in some looser sense, such as a parent and subsidiary relationship; 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; iii) The arrangement may be general in that it applies to all documents held by the third party or it could be limited to a particular class or category of documents. A limitation such as an ability to withhold confidential or commercially sensitive documents will not prevent the existence of such an arrangement; iv) The existence of the arrangement or understanding may be inferred from the surrounding circumstances. Evidence of past access to documents in the same proceedings is a highly relevant factor; 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; vi) the arrangement or understanding must not be limited to a specific request but should be more general in its nature.”
“in the context of the phrase ‘possession, custody or power’ the expression ‘power’ must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future... For the reasons already indicated Shell Mocambique’s documents are not in my opinion within the ‘power’ of either of Shell or BP within the meaning of RSC Ord 24. They could only be brought within their power either (1) by their taking steps to alter the articles of association of Consolidated and procuring Consolidated through its own board of directors to take steps to alter the articles of association of Shell Mocambique, which Order 24 does not require them to do; or (2) by obtaining the voluntary consent of the board of Shell Mocambique to let them take copies of the documents. It may well be that such consent could be obtained; but Shell and BP are not required by Order 24 to seek it, any more than a natural person is obliged to ask a close relative or anyone else who is a stranger to the suit to provide him with copies of documents in the ownership and possession of that other person, however likely he might be to comply voluntarily with the request if it were made.”
“4. Dual mandate of Ms Neyroud and Ms Aubert The fact that Mr. Neyroud represents both the State of Kuwait and the PIFSS is seen as particularly problematic by the defendants, in case of access to the PIFSS file. This dual representation is in fact merely the embodiment, in Switzerland, of the close relationship between the State of Kuwait and PIFSS. On this point, it is necessary to follow the defendants on the fact that the PIFSS cannot be considered as an entity separate from the State of Kuwait, or even a semi-State entity. In view of its functioning and aims, the PIFSS is clearly a State entity in its own right, notwithstanding its independent legal personality and the latitude it may enjoy in the management of its affairs. … It must therefore be noted that the defence of the interests of the State of Kuwait and the defence of the interests of PIFSS are closely linked and that it is to be expected that PIFSS will regularly report on the Swiss procedure to the State of Kuwait, especially since the present decision does not contain any restrictions in this regard. The dual constitution of Ms Neyroud and Ms Aubert is therefore not liable to create any particular prejudice to the participants in the proceedings. A clear conflict of interest between the State of Kuwait and PIFSS, which according to case law (ATF 141 IV 257 c. 2.2) would require the intervention of the OAG, is also not apparent. Accordingly, there is no obstacle in principle to Mr Neyroud and Mr Aubert representing both PIFSS and the State of Kuwait. However, the organisation of the representation must be adjusted in order to meet the criteria laid down in art. 127 para. 2 CCP.”
“As regards PIFSS’s participation in the Kuwaiti criminal process, PIFSS asked to be a private plaintiff but this did not proceed and PIFSS did not participate or take any active role in the Kuwaiti criminal process. Accordingly, it did not receive the volumes of documents which the Defendants appear to speculate that PIFSS must have received. PIFSS did not receive copies of the criminal files relevant to those proceedings.”
“73. Stewarts has conducted detailed investigations of DLAL’s documents which has involved a review of correspondence exchanged between DLAL and PIFSS, as well as DLAL’s communications with third parties. Without waiving privilege, the steps carried out can be summarised as follows: 73.1. A review of email communications on PIFSS’s systems between DLAL and the assigned point of contact at PIFSS (i.e. the email inboxes of Dr Ayman Al Baloushi and Ms Noor Al Fares) was conducted. These lawyer/client communications are privileged. 73.2. Stewarts has made enquiries of DLAL and has similarly interrogated DLAL’s communications on behalf of PIFSS with third parties. Where potentially responsive communications were identified, they were reviewed. Those communications were either not, on review, responsive to the DLOI or were privileged. 73.3. We satisfied ourselves, based on information provided by DLAL, of the existence of documents held by DLAL, pursuant to its role for the KAG, which PIFSS did not have and was not entitled to review or inspect. 73.4. Investigations, supervised by Stewarts, have also been carried out of documents held by DLAL on behalf of PIFSS. 74. As explained above, Stewarts was instructed to act for PIFSS in May 2015, shortly after DLAL’s appointment as PIFSS’s representative. Stewarts has contemporaneous knowledge of DLAL’s work for PIFSS and with that knowledge it was able to supervise the review of DLAL’s documents in a properly informed way. 75. In light of the above, I consider that the relief sought by the Man Defendants, has already been carried out and no further action is required. I confirm that PIFSS has no right to access documents held by the DLAL pursuant to any role for the KAG.”
“PIFSS shall within 14 days provide a witness statement containing a detailed description of PIFSS’s access to documents held by (i) Kuwaiti Parliamentary Committees (“the Committees”) and (ii) the Kuwaiti State Audit Bureau (“SAB”), which shall include representatives of each Committee) that have investigated Mr Al Rajaan. The witness statement shall include (i) a description of how documents are accessed by/shared with PIFSS, including whether PIFSS has access (whether to see and/or receive copies) to documents held by the Committees or SAB (including any legal basis for PIFSS’s position), how often PIFSS has made requests for documents and the response from the Committee or SAB, including how the Committee or SAB exercises any “discretion” to share documents, (ii) the types of documents made available by the Committee or SAB, (iii) the volume of documents that have been withheld pursuant to the common interest privilege claim.”
“PIFSS shall: 7.1 search for and disclose documents held by KPMG by1 March 2024 , to include the following documents: (i) the documents provided to Stewarts by KPMG in the week commencing11 December 2023 ; (ii) any notes of interviews conducted by KPMG during the course of their investigation; (iii) any documents by KPMG received from third parties during the course of their investigation; and (iv) correspondence between KPMG and PIFSS relating to KPMG’s terms of engagement; and 7.2 make all reasonable attempts to contact Doctors Sartawi, Al Obaidan and Al Kandari for the purposes of disclosing documents held by those individuals.”
“We shall retain ownership of the copyright and all other intellectual property rights in the product of the Services, whether oral or tangible, and ownership of our working papers. You shall acquire ownership of any product of the Services in its tangible form on payment of our Charges for any such product. For the purposes of delivering services to you or other clients, we and other KPMG Persons shall be entitles to use, develop or share with each other knowledge, experience and skills of general application gained through performing the Services. The Services shall be delivered on the basis that you shall not quote our name or reproduce our logo in any form or medium without our prior written consent.”
“23. We may use data, software, designs, utilities, tools, models, systems and other methodologies and know-how (“Materials”) in performing the Services. Notwithstanding the delivery of any Reports, we retain all intellectual property rights in the Materials (including any improvements or knowledge developed while performing the Services), and in any working papers compiled in connection with the Services (but not Client Information reflected in them). 24. Upon payment for the Services, you may use any Materials included in the Reports, as well as the Reports themselves as permitted by this Agreement.”
“If there is nothing in the contract on which the plaintiffs can rely to establish that they are right in saying that these pieces of paper are their property, by what rule of law otherwise can they assert that that is so? I know of none. Some reference has been made to, and reliance placed on, one or two cases which were cited by Mr. Macaskie, such as Lady Beresford v. Driver (1) and Gibbon v. Pease (2), but I think that those cases are radically different from the present case, as being concerned with the relative rights and duties of principal and agent. If an agent brings into existence certain documents while in the employment of his principal, they are the principal's documents and the principal can claim that the agent should hand them over, but the present case is emphatically not one of principal and agent. It is a case of the relations between a client and a professional man to whom the client resorts for advice. I think it would be entirely wrong to extend to such a relation what may be the legal result of the quite different relation of principal and agent. These pieces of paper, as it seems to me, cannot be shown to be in any sense the, property of the plaintiffs, any more, as I suggested to Mr. Macaskie during the argument, than his solicitor client or his lay client could assert that his notes of the argument he addressed to us could ,be claimed to be delivered up by him when the case is over either to the solicitor or to the lay client. They are documents which he has prepared for his own assistance in carrying out his expert work, not documents brought into existence by an agent on behalf of his principal, and, therefore, they cannot be said to be the property of the principal.”
“It does seem to me that if a responsible partner of a firm of solicitors has signed a disclosure statement that one should proceed on the basis that he has done so properly, not least because of his signature that he is aware that proceedings for contempt of court can be brought if he signs a false statement. The courts normally proceed on the basis that responsible partners in solicitors firms make statements which are to the best of their knowledge true and I see no reason why I should take a different approach here. The proposed order seeks to interrogate those responsible for the disclosure process by way of providing details of those who have contributed to it. Whilst it may be that in some cases a court might be so concerned as to the approach to disclosure that some further orders might be made with a view to enabling the parties and the court to understand what has happened, this would be an exceptional course. Ordinarily, the statement of a responsible partner would not be sufficient to satisfy the court, and there is nothing in the terms of the standard form disclosure statement which indicates that further interrogation or particulars are required as to the matters which contributed to the partner’s decision that the disclosure statement could be signed.”
“4. PIFSS shall by1 March 2024 : 4.1 produce all communications with the KAG / the KPP and / or any documents provided by the KAG / the KPP to PIFSS which have been separately disclosed by D1/D2 and which were originally withheld by PIFSS on the grounds of privilege; 4.2 re-review the privilege claimed in relation to all communications with the KAG / the KPP and / or any documents provided by the KAG / the KPP to PIFSS, for the purpose of producing all documents over which privilege can no longer be claimed.”
“PIFSS’s position remains that there is no evidence that directors communicated by email. However, and without prejudice to this, we consider that the most direct and likely profitable route to obtaining any such material, if it exists, would be for PIFSS to write to the directors who served at PIFSS during a period when electronic communications could have been used and ask them specifically to confirm whether they have in their possession, including on their personal mobile phones or email accounts, any communications with any other director or directors of PIFSS which relate to Mr Al Rajaan, including any text messages or other form of instant messages. If so, PIFSS would request that such directors voluntarily provide copies of such communications to PIFSS. We propose that directors who served at PIFSS at any time between1 January 2004 and31 December 2014 be contacted. They would be directors with potentially relevant contemporaneous knowledge, and who conceivably could have used electronic communications. We do not consider it realistic that directors who left PIFSS prior to1 January 2004 would have communicated electronically or would realistically have retained any such communications.”
“42. I. In what circumstances, for what reason or purpose and for whose benefit, pursuant to what arrangements reached as a result of which communications (whether written or otherwise), were the Pensée Foundation and an account at Deltec in its name: (a) established; and (b) subsequently used? II. Under whose control with whose and what knowledge and on whose instructions or on whose advice was the Pensée Foundation (a) established and; (b) subsequently operated? Relevant to the above are: a) What communications leading to what agreements or arrangements took place between which individuals in connection with: (i) the establishment and subsequent operation and use of the Pensée Foundation and the execution of all associated documentation; (ii) any agreement or arrangement whereby Mr. Nasrallah would act as nominee for and on behalf of Mr. Al Rajaan in relation to the Pensée Foundation; (iii) the Pensée Foundation’s banking arrangements; and (iv) the funds to be received by the Pensée Foundation? b) Was there a meeting in or around June 2013 between Mr Nasrallah, Mr Jean Chalopin, Mr Al Rajaan and Mr Amouzegar in Paris at the George V Hotel at which the arrangements for the setting up of the Pensée Foundation and its bank account with Deltec in the Bahamas were agreed? What arrangements were agreed and in what circumstances? c) Did Mr Nasrallah draft a handwritten agreement (dated20 June 2013 )? d) The respective roles of Mr. Nasrallah, Mr. Al Rajaan and Mr. Amouzegar in connection with the Pensée Foundation. 43. On whose instructions (both entity and individual) and with whose knowledge were payments made into the Pensée Foundation’s account, and what was the form and content of those instructions (written or otherwise)? What was the source of the funds paid into that bank account and what understanding did any individual acting for the Pensée Foundation have of the source and nature of the payments based on what, if any, enquiry?”