Friend Media Technology Systems Limited & Anor v Jonathan Norman Friend & Anor [2025] EWHC 2506 (KB)

[2025] EWHC 2506 (KB)Case No KB-2025-001228
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 1/10/2025
Before
MRS JUSTICE HILL
Between
FRIEND MEDIA TECHNOLOGY SYSTEMS LIMITEDClaimants/FRIEND MTS LIMITEDRespondents
Daniel Oudkerk KC and Jamie Randall (instructed by Addleshaw Goddard) for Claimants/RespondentsGavin Mansfield KC (instructed by Lewis Silkin LLP) for Defendants/ApplicantsMatthieu Gregoire (instructed by Jowett Kennedy Fidler LLP t/a Tyr) for NEC RespondentsHearing Hearing date: 19 September 2025
Mrs Justice Hill:

Introduction

[1]By an application notice dated and sealed on 11 September 2025, the Defendants in these proceedings seek orders for(i) specific disclosure under CPR 31.12 against the Claimants; and(ii) non-party disclosure under CPR 31.17 against three individuals and the private equity firm, NorthEdge Capital LLP (“NEC”), in which they are partners (“the NEC Respondents”). The three individuals are Andrew Skinner, Keven Parker and Michael Joseph (“the NEC Custodians”). The application was supported by a witness statement from David Samuels, the Defendants’ solicitor, dated 11 September 2025 (“Samuels 1”).[2]The Claimants and NEC Respondents both resisted the application. The Claimants responded to the application with witness statements from Shane McCarthy (the First Claimant’s Chief Executive Officer), Mark Scotter (its Chief Financial Officer) and Gareth Jones, their solicitor (respectively, “McCarthy 1”, “Scotter 1” and “Jones 1”) dated 16 September 2025. The NEC Respondents served a witness statement from Rebecca Birkby, their solicitor, dated 17 September 2025 (“Birkby 1”).[3]The expedited trial of the issues in respect of liability and injunctive relief on this claim, with a time estimate of 5 days, is due to start on or around 20 October 2025. Accordingly, the application was listed for hearing on 18 September 2025 in the King’s Bench Division Interim Applications List during the Long Vacation. I was greatly assisted by the written and oral submissions of all three counsel.[4]Given the complexity of the submissions and the pressure on the court list on 18 September 2025, it was necessary to reserve judgment on the application. It is being handed down as soon as the commitments of the court and counsel permitted.

The factual background

[5]The First Defendant, Jonathan Friend, is a director of the First Claimant (“FMTS”) and is a former director of the Second Claimant (“Friend MTS”). Mr Friend originally founded the Claimant companies. Their principal business is the provision of services and software designed to combat the piracy of, for example, sports and entertainment content.[6]NEC is the fund manager for three limited partnerships funds (the “Investors”) who acquired shares in FMTS by way of a private equity investment. NEC owns the majority of the shares in the First Claimant.[7]NEC’s investment took place in accordance with an investment agreement dated 19 July 2022 made between FMTS, the managers (which included Mr Friend), the investors, NEC, the founders (which also included Mr Friend) and DSZ (PTC) Limited (as trustee of a trust of which Mr Friend is a beneficiary). On the same date, Mr Friend also entered into a service agreement. The Claimants contend that Mr Friend’s contractual obligations arise the investment agreement and the service agreement.[8]Birkby 1 explained at [9]-[13] that pursuant to the investment agreement, NEC is entitled to appoint two Investor Directors to the boards of FMTS and Friend MTS. Their purpose is to ensure that the Investors have representation on the board of directors of the holding and operational companies and can thereby influence decision-making to further the Investors’ goal of growing the business, increasing shareholder value and achieving a realisation.[9]Mr Skinner, Mr Parker and Mr Joseph are all partners in NEC. Mr Skinner and Mr Parker currently perform the role of NEC-nominated directors on the Claimants’ boards. Mr Joseph was a director of the First Claimant until 18 January 2023 and of the Second Claimant until 26 June 2024. He retired from dealing with the day-to-day operations of NEC on 30 September 2024.[10]Investor Directors are non-executive directors. The NEC Custodians when acting as Investor Directors are not employed by either FMTS or Friend MTS nor are they specifically remunerated for their roles. As well as acting as Investor Directors, the NEC Custodians are also the same individuals who have or had primary responsibility within NEC for its role of Fund Manager, managing the investment from an Investor perspective.[11]In early 2024 Mr Friend resigned his employment. In November 2024 the Claimants removed him as a director of Friend MTS. He reserves his position as to whether the Claimants had the right to do so. He remains a director of FMTS and he and his family, directly and indirectly have a more than one third shareholding in the Claimants.[12]The Claimants allege that Mr Friend is in breach of duty as a result of his contact with customers of and competitors to the Claimants. It is alleged that he has made disparaging comments about the Claimant companies, misused confidential information, and established the Second Defendant in competition with the Claimants.[13]Mr Friend denies being in breach of his obligations. He contends that his establishment of the Second Defendant (“Friend TP Ltd”), which is currently dormant, was merely a means by which to provide non-competing consulting services in the future. To the extent that he had contact with customers, he did so to protect and advance the Claimants’ business (thereby protecting his interest as a shareholder). The Claimants’ inferential allegations as to competition and misuse of confidential information are denied.[14]On 25 October 2024 the founders and minority shareholders of FMTS commenced a claim against the Investors in Jersey for unfair prejudice (the “Jersey proceedings”). There is also a claim in the Employment Tribunal which is currently stayed.

The procedural history

[15]On 9 April 2025 the Claimants issued the claim form in these proceedings and applied for an interim injunction, which was compromised by a consent order, to ensure that Mr Friend should comply with his fiduciary and contractual obligations. The consent order was signed and approved by Adrian Eardley KC (sitting as a Deputy Judge of the High Court) on 15 April 2025. The injunction was obtained and a return date set of 8 July 2025.[16]However, on 7 July 2025 a consent order was signed and approved by Andrew Kinnier KC, sitting as a Deputy Judge of the High Court. The order continued the undertakings from Mr Friend until trial. Those directions required that by 4.00 pm on 18 July 2025, each party was to serve and file with the court an electronic documents questionnaire following Practice Direction 31B (“EDQs”); and by 4.00 pm on 15 August 2025, they must provide standard disclosure of documents by list and by category, with simultaneous inspection.[17]On 18 July 2025, EDQs were exchanged.[18]The Defendants contend that the Claimants have “dragged their heels” and that disclosure has come in “dribs and drabs”, late, and without their agreement or the consent of the court. The Defendants have attempted to collaborate on disclosure through correspondence. It is said that the Claimants’ approach has caused the Defendants significant difficulty in reviewing disclosure and it is unclear whether disclosure is complete.[19]The Claimants’ position, as set out in Jones 1, is that they have, in a very compressed timescale, reviewed over 240,000 documents, whilst responding to the Defendants’ requests to provide further disclosure. They contend that they have provided substantial disclosure to the Defendants, notwithstanding that the core issue for the upcoming trial is Mr Friend’s conduct.[20]The original date for exchange of witness statements was 19 September 2025, though the parties agreed an extension to 26 September 2025.[21]A Pre-Trial Review (“PTR”) is listed for 3 October 2025.[22]The principal issue for determination at the upcoming trial is whether the Claimants were entitled to obtain injunctive relief against Mr Friend. Damages and quantum will be addressed at a further trial.

The issues on the applications

(i) : Mr McCarthy and Mr Scotter’s personal accounts and devices

[23]The Defendants’ specific disclosure application initially sought disclosure orders to require further searches of the personal accounts and devices of Shane McCarthy (the First Claimant’s Chief Executive Officer) and Mark Scotter (its Chief Financial Officer).[24]The Defendants contended, in summary, that although these two recognised “custodians” in the disclosure process had searched their personal devices and accounts, they had omitted relevant repositories (such as certain further email addresses) and conducted searches for too narrow a date range (namely 1 July 2024 to 30 September 2024, for which there was no logic when longer date ranges had been used for their searches of their work emails).[25]Mr McCarthy and Mr Scotter both provided witness statements in response to the application dated 16 September 2025. These statements explained why the 1 July 2024 to 30 September 2024 search parameters had been used for searches of certain email addresses; provided further disclosure from other email accounts; and explained that other personal email accounts had not been used in relation to the issues in this case. Mr McCarthy confirmed that he would make one further email address available for searching, as well as his personal devices, so that his WhatsApp messages with a list of specified people could be searched. Mr Scotter confirmed that he had only used a work device to communicate by WhatsApp etc about this case, and this device had already been searched.[26]In light of this evidence, Mr Mansfield KC did not pursue the specific disclosure application in relation to these two custodians at the hearing. (ii): Surveillance documents[27]Examination of documents disclosed on 9 September 2025, at around the time that the application was being finalised, indicated that the Claimants had been conducting covert surveillance of Mr Friend and his family. Samuels 1 at [51] asserted that disclosure of further documents relating to the surveillance issue was not being sought and it did not feature in the draft order appended to the application.[28]Mr Mansfield KC sought to pursue an application for further material about the surveillance issue in his skeleton argument for the hearing. However, he rightly accepted at the outset of the hearing that such an application was not properly before the court and would have to be made in the usual way at a future date if so advised. (iii): The NEC Custodians’ material[29]Accordingly, the only category of documents which Mr Mansfield KC advanced at the hearing related to material held by the NEC Custodians. The Claimants had made clear in correspondence that they refused to include the NEC Custodians as custodians for standard disclosure because(i) the NEC Custodians’ emails are not in the Claimants’ possession or control; and(ii) disclosure from these custodians is neither necessary nor proportionate, as any relevant documents are likely to have been sent to other custodians.[30]The specific groups of documents sought in the specific disclosure application were listed in Schedule 1 to the draft order appended to the application notice, save that Mr Mansfield KC modified this during the hearing by withdrawing the application in respect of those documents listed at paragraph 2.b of the draft order. The same groups of documents were sought in the alternative via the non-party disclosure application. These were listed in Schedule 2 to the draft order.[31]The Defendants also sought disclosure of the NEC Custodians’ personal devices.

The legal framework

(i) : Orders for specific disclosure under CPR 31.12

[32]CPR 31.12 provides that:
“The court may make an order for specific disclosure or specific inspection. (2) An order for specific disclosure is an order that a party must do one or more of the following things – (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; (c) disclose any documents located as a result of that search. (3) An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).”
[33]CPR PD31A provides as follows: “5.4 In deciding whether or not to make an order for specific disclosure the court will take into account all the circumstances of the case and, in particular, the overriding objective described in Part 1. But if the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a sufficient search for documents or otherwise) the court will usually make such order as is necessary to ensure that those obligations are properly complied with. 5.5 An order for specific disclosure may in an appropriate case direct a party to –(1) carry out a search for any documents which it is reasonable to suppose may contain information which may – (a) enable the party applying for disclosure either to advance his own case or to damage that of the party giving disclosure; or (b) lead to a train of enquiry which has either of those consequences; and(2) disclose any documents found as a result of that search”.[34]CPR 31.5(5) emphasises the need for disclosure to be in accordance with the overriding objective.[35]Under CPR 31.7(1) when giving standard disclosure, a party must undertake a reasonable search for documents falling within CPR 31.6(b), namely “documents which(i) adversely affect his own case;(ii) adversely affect another party’s case; or(iii) support another party’s case”.[36]The White Book at paragraph 31.12.2, explains that in deciding whether to make an order for specific disclosure:
“The court will need to satisfy itself as to the relevance of the documents sought, and that they are or have been in the party’s control, or at least that there is a prima facie case that these requirements will be met. The relevance of documents is analysed by reference to the pleadings, and the factual issues in dispute on the pleadings.”
[37]However, relevance is “not an absolute concept”: evidence may be “logically” or “theoretically” relevant but nevertheless “too marginal, or otherwise unlikely to assist the court, for its admission to be justified”: HSBC Asia Holdings BV v Gillespie [2011] ICR 192 at [13](2), per Underhill J (as he then was).[38]Further, relevance is a factor, but is not, of itself, sufficient to justify making an order for disclosure. Rather, the document must be of “such relevance that disclosure is necessary for the fair disposal of the proceedings”: Canadian Imperial Bank of Commerce v Beck [2009] IRLR 740 at [22], per Wall LJ, cited by Linden J in Santander UK PLC v Bharaj [2021] ICR 580 at [24].[39]The White Book at paragraph 31.0.2 reiterates that “[t]he overriding principle is that disclosure should be restricted to what is necessary in the individual case”.[40]PD57AD, dealing with disclosure in the Business and Property Courts, does not apply to this claim, but contains some helpful guidance. Paragraph 6.4 sets out certain factors which are relevant in determining whether Extended Disclosure is in accordance with the overriding objective: “(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); and (6) the financial position of each party”.[41]“Extended Disclosure is “all about the just and proportionate resolution of the real issues in dispute”; it is “not…something that should be used as a tactic, let alone a weapon, in hard fought litigation”: UTB LLC v Sheffield United Limited [2019] Bus LR 1500 at [79], per Vos C.[42]PD57AD also draws a distinction between a document which is relevant to the issues for disclosure and a “narrative document” which is “relevant only to the background or context of material facts or events”: Appendix 1, paragraph 1.12. Unless the court orders otherwise, where an order is made for search-based disclosure, the parties should take reasonable steps to exclude narrative documents: paragraph 8.3, Model D at (3). (ii): Documents in a party’s“control”[43]A party’s duty to disclose documents is limited to documents which are or have been in his control: CPR 31.8(1). Documents are in a party’s control if(a) it is or was in his physical possession,(b) he has or has had a right to possession of it, or(c) he has or has had a right to inspect or take copies of it: CPR 31.8(2).[44]There is no material difference between “power” and “control” in this context: Berkeley Square Holdings Ltd v Lancer Property Asset Management Ltd [2021] EWHC 849 (Ch) at [28].[45]“Power” means “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”: Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 at 635H, per Lord Diplock.[46]The concept of “possession” in CPR 31.8(2)(b) covers a situation where a third party is in possession of documents as agent for the litigant: North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 at [40]. Electronically stored documents are in principle covered by the same incidents of agency: Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886 at [55]. Accordingly, documents held by an agent relating to work for the principal but held on devices or servers which are not those of the principal are in control of the principal for the purposes of CPR 31.8(1).[47]It is well recognised that the director of a company is both an agent and a fiduciary of the company of which he or she is a director. Accordingly, a company has the right, as a legal incident of its relationship with its directors, to require the directors to produce documents relating to the affairs of the company.[48]Further, documents within the control of one company may fall within the control of another, even where there is no legally enforceable right to access the documents, as a result of an “understanding or arrangement that the party who is said to have control will be able to access the documents held by the custodian one way or another, even though it may still need to be agreed precisely how that access should be achieved”: Berkeley Square at [44]. Whether there is such an arrangement or understanding can only be determined by reviewing all the relevant circumstances. However: “…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 arrangements or understanding must not be limited to a specific request but should be more general in nature”: Berkeley Square at [46].[49]A principal does not have control over all documents held by a third party as a result of documents within the principal’s control being “mixed” with documents which are not within the principal’s control. In the absence of consent being given to disclosure of the entire repository of documents, the court may make an order for disclosure, but this needs to reflect the fact that the disclosing party does not, as a matter of fact and practicality, have control of all of the third party’s documents. Such an order must be reasonable and proportionate and must balance the interests of the third party who holds the documents.[50]As the Court of Appeal recognised in Phones 4U (In Administration) v EE Ltd and Others [2021] EWCA Civ 116; [2021] 1 WLR 3270 at [37]:
“Any order relating to the disclosure of business materials mixed with personal materials engages a number of potentially conflicting interests. The need for the due and efficient administration of justice has to be balanced against the individuals’ article 8 rights of privacy. In balancing these interests, the court will seek within the bounds of the Civil Procedure Rules and the overriding objective to find a workable solution; such a solution should not be excessively costly, time-consuming or complex. In other words, the solution itself must be reasonable and proportionate.”
[51]The order made by Roth J in that case, and upheld on appeal, was for the disclosing parties to write to certain custodians to request them to voluntarily give access to their personal mobile telephones and e-mails to e-disclosure providers who would search for work-related communications that would be passed to the disclosing party: Phones 4U at [2].[52]In Phones 4U the Court of Appeal noted that the case concerned an alleged unlawful agreement, which by its nature is likely to be covert and it was therefore reasonably likely that individuals would have avoided using their work devices: [38]. The Court observed that by ordering the disclosing parties to request the individuals to voluntarily provide their devices for inspection to a third party, Roth J was trying to short-circuit the need for satellite litigation, which would likely have involved further applications brought against the individuals by the disclosing parties: [42]. It was necessary for the order to be reasonable and proportionate and the safeguards built into the order, not least that the third parties could refuse the requests, satisfied this requirement: [37], [45] and [51].[53]Similarly, in BES Commercial Electricity Ltd v Cheshire West and Chester Borough Council [2020] EWHC 701 (QB), a party was ordered to request an employee to produce certain documents and “thereafter use its best endeavours to secure compliance with such request”: [78]. (iii): Orders for non-party disclosure under CPR 31.17[54]CPR 31.17(3) provides that where an application is made to the court for disclosure by a person who is not a party to the proceedings, 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”.[55]Under CPR 31.17(4), an order under this rule must(a) specify the documents or the classes of documents which the respondent must disclose; and(b) require the respondent, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection.[56]As to the first limb of the CPR 31.17(3) test (relevance), documents “are likely to support the case” if they “may well” do so as opposed to it being “more probable than not” that they will: Three Rivers DC v Bank of England (No. 4) [2002] EWCA Civ 1182, [2003] 1 WLR 210 at [30]-[32]. The applicant must show that the relevance test is met for each of the documents to be disclosed: the court should not leave it to the non-party to determine which documents to disclose in this manner: White Book at paragraph 31.17.3.[57]As to the second limb (necessity), the court has a wide discretion and flexibility to make an order, considering all the circumstances of the case: R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118 at [30].[58]Even where the criteria of relevance and necessity in CPR 31.17(3) are satisfied, the court still has a discretion to decide whether it ought to order disclosure. The word “only” in 31.17(3) “emphasises that disclosure from third parties is the exception rather than the rule”; and “[d]isclosure will not be routinely ordered but only where the conditions there specified are met”:Frankson v Secretary of State for the Home Department [2003] EWCA Civ 655; [2003] 1 WLR 1952 at [10].[59]Privacy concerns can be a very relevant consideration for the court when conducting the balancing exercise and determining whether to exercise its discretion under CPR 31.17, particularly against a non-party: Phones 4U at [37].[60]In respect of how this power is to be exercised, the court has a clear obligation to ensure, if necessary of its own motion, that this “intrusive jurisdiction” is not “used inappropriately even by consent”: Flood v Times Newspapers Ltd [2009] EWHC 411 (QB) at [29], per Eady J.[61]The respondent’s costs of a third party disclosure application are normally paid by the applicant: CPR 46.1(2). The court may make a different order, for example if a respondent unreasonably opposed the application or unreasonably refused to comply with a pre-action protocol: CPR r.46.1(3).

The specific disclosure application

[62]In light of the legal framework set out above, I have distilled three issues inherent in the application. (i): Are the documents sought in the Claimants’ control?[63]The White Book at paragraph 31.12.2 makes clear that the court will need to satisfy itself that there is at least a prima facie case that the documents in question are or have been in a party’s control.[64]I am satisfied that the Defendants can meet that threshold for these reasons.[65]First, the NEC Custodians are or were directors of the Claimants, and therefore agents of the Claimants. Any documents created by them in the performance of their role as directors are in the control of the Claimants. The Claimants are entitled to call for the documents of their agents, the directors. It is irrelevant what medium the directors used to create those documents. This proposition of law was not disputed by the Claimants.[66]Second, the Defendants have made out at least a prima facie case that because the NEC Custodians used NEC email accounts, not the Claimants’ email accounts, to conduct business on behalf of the Claimants, there must have been an arrangement, express or implied from their course of conduct, that the Claimants would be entitled to see those documents, applying the principles set out in Berkeley Square. (ii): Are the documents sought of such relevance that disclosure of them is necessary for the fair disposal of the proceedings?[67]In assessing whether further disclosure is necessary for the fair disposal of the proceedings, it is important to bear in mind the extensive disclosure exercise that has already taken place. There are two relevant aspects to this.[68]First, there is force in the Claimants’ general point that documents which prove whether or not Mr Friend has threatened to breach and/or has breached his obligations will at least primarily be documents in the possession of Mr Friend himself, showing the discussions he has had with customers and potential customers. Moreover, any correspondence between the NEC Custodians and Mr Friend should have already been reviewed and disclosed by Mr Friend.[69]Second, the Claimants have already disclosed the results of searches of the material held by their “internal” custodians, including others on the Claimants’ boards. This has included communications involving the NEC Custodians, acting in their capacities as NEC-nominated directors on the boards.[70]It follows that any order for specific disclosure of communications between the NEC Custodians and Mr Friend or between the NEC Custodians and the Claimants’ internal custodians would be duplicative of material that has already been disclosed and thus inconsistent with the overriding objective. Accordingly, the specific disclosure application was limited to communications solely between the NEC Custodians or between the NEC Custodians and third parties which did not involve others on the Claimants’ boards. I refer to these, respectively, as “intra-NEC” and “NEC/third party” communications.[71]Mr Mansfield KC submitted that it was highly likely that the NEC Custodians would have communicated between themselves and with third parties (not least NEC) about the business of the Claimants and about the matters of dispute with Mr Friend, given that at the heart of the claim is - on the Defendants’ analysis (not accepted by the Claimants) – a dispute between NEC’s appointees and Mr Friend and his family.[72]In my judgment this submission overstated the position, given the explanation of the nature of the role of the NEC Custodians while acting in their capacity as Investor Directors given in Birkby 1 at [12].[73]There, Ms Birkby explained that the Investor Directors have no executive authority within FMTS or Friend MTS. Their interface with the companies takes place through the company boards and the corporate governance structure. Whilst the role of Chairman entails some additional responsibility in overseeing the functioning of the board and interaction with shareholders, it is still a board level role. The Investor Directors when carrying out the Investor Director role therefore primarily communicate with the other directors on the board and receive documents (such as board packs) through the executive management of Mr McCarthy and Mr Scotter and the company secretary function. Ms Birkby confirmed at [15] that for these reasons it would be “rare” that the Investor Directors would be discussing matters without involving the wider board; and any such documents would already likely to be found within the company’s own disclosure. She also explained that the Investor Directors do not communicate or interact with third parties on its behalf.[74]In considering applications of this kind, it is necessary to consider the documents sought in the context of the issues in the case as evidenced by the pleadings: again, see the White Book at paragraph 31.12.2.[75]The parties characterised the overarching issue in this case in different ways. The Defendants’ case, set out in Samuels 1 at [59], is, as I have alluded to, that at the heart of the claim is a conflict as to the management of the Claimants’ business between, on the one hand, NEC and its appointed directors (the three NEC Custodians) and, on the other, Mr Friend and his family members. That may be well be right by way of background, but in my judgment the Claimants were right to assert that the focus of the October trial will be whether Mr Friend has breached his duties and obligations to the Claimants as a result of contact with customers and other industry organisations, misuse of confidential information and the establishment of the Second Defendant in January 2025.[76]The alleged breaches of duty by Mr Friend are set out in the Particulars of Claim (“POC”) at [58]-[63]. It is alleged at [58.1] that he has had repeated and detailed discussions with customers, prospective customers and potential partners, the content of which he has refused to disclose to the Claimants, in the ways set out in the preceding paragraphs [44]-[50].[77]Samuels 1 contends that there are frequent references to the NEC Custodians in the pleadings. Again, this overstates matters. There is mention in the pleadings of discussions or meetings between Mr Friend and Mr Parker on 19 July 2024, 11 December 2024 and 8 January 2025. There is reference to Mr Friend discussing the topic of “inorganic growth” and mergers and acquisitions with Mr Parker and Mr Skinner. I cannot see that there is any reference to Mr Joseph in the key paragraphs. This is perhaps unsurprising as he resigned as a director of the Second Claimant on 18 January 2023 and the First Claimant on 26 June 2024, before the majority of the events which are in issue took place and nearly a year before the claim was issued.[78]I turn now to the specific categories of documents sought in the draft order.[79]Paragraph 2.a of schedule 1 to the draft order seeks “all documents referring or relating to the proposed “Rebrand” of the “Friend Group” and the requirement and subsequent failure to obtain approval for it under the “Joint Consent” mechanism. Paragraph 2.e(x) also seeks communications and documents concerning a Zoom call between Mr Friend and Mr Parker on 10 May 2024, which relates to the Rebrand issue.[80]The Rebrand issue features in the POC at [43.4]. It is advanced as an example of Mr Friend preferring his interests over those of the Friend Group. This is not said to be an example of a discussion with customers, prospective customers and potential partners or as a specific breach of duty. Accordingly, I agree with Mr Oudkerk KC that this does not appear to be a key issue in dispute for the purposes of the October trial. Rather, it is said to part of the factual background.[81]In my judgment there is no clear basis, beyond assertion, for the proposition that it is likely that there were intra-NEC or NEC/third party communications about this issue. As far as paragraph 2.e(x) is concerned, I note that the Vice-President of Marketing was said to be on the relevant Zoom call as well as Mr Friend and Mr Parker. It is therefore reasonable to infer that the Claimants’ correspondence on this issue has already been reviewed and disclosed where relevant.[82]For these reasons I am not persuaded that these documents areof such relevance that disclosure of them is necessary for the fair disposal of the proceedings.[83]The same considerations apply to paragraph 2.e(iii) of the draft order which seeks communications and documents concerning the proposal to set up a “rapid prototyping team”. This issue features in the preceding paragraph of the POC to the Rebrand issue, at [43.3].[84]Paragraphs 2.c, 2.e(ii) and 2.e(xii) of the draft order seek documents recording concerns or complaints raised by Sky Group Limited, which relate to a potential warranty dispute that was the subject of an exchange between Mr Parker and Mr Friend on 19 July 2024 referred to in the POC at [46]. Again, this is part of the factual background as it is Mr Friend’s alleged response to the exchange – namely threatening to contact Sky and other key customers – which is the adverse conduct relied on. Again, there is no clear basis for concluding that there were intra-NEC or NEC/third party communications about this issue.[85]Paragraph 2.d seeks “all materials recording Mr Friend’s comments about his conversations with Sky and the Premier League at the FMTS board meeting on 6 February 2024”. Again, this is part of the factual background, referred to in the POC at [44]. It is to be assumed that Mr Friend’s comments were recorded in the board meeting minutes which will already have been disclosed if relevant. Again, there is no clear basis for concluding that there were intra-NEC or NEC/third party communications about this issue.[86]Paragraph 2.e(i) seeks all communications and documents concerning the termination of Mr Friend’s employment. While I can see that there might be some relevance to this material, again, there is no clear basis for concluding that there were intra-NEC or NEC/third party communications about this issue.[87]Paragraph 2.e(iv) seeks communications and documents concerning the suspension of Mr Friend’s access to the Friend Group’s IT systems, the remote locking of his laptop and the alleged lifting of the IT suspension on 3 August 2024. Again, this is part of the factual background. It is particularly hard to see why there would be any intra-NEC or NEC/third party communications about this issue.[88]Paragraph 2.e(v) seeks communications and documents concerning Mr Friend’s meeting with Sky on 3 December 2024. Paragraph 2.e(vi) seeks communications and documents concerning his meeting with the Premier League on 16 December 2024. Paragraph 2.e(vii) seeks communications and documents concerning disparaging comments made by Mr Friend. The Claimants accept that the fact of these meetings and the content of Mr Friend’s discussions with Sky and the Premier League, and the fact and extent of Mr Friend’s disparaging comments about the Claimant companies, are all relevant to the question of whether he has breached his obligations to the Claimants entitling them to injunctive relief, which is the key issue for resolution at the October trial. However, I accept Mr Oudkerk KC’s submission that the relevant documents in relation to these meetings and alleged comments are likely to be those held by Mr Friend, not by the Claimants or NEC. Again, there is no clear basis for concluding that there were intra-NEC or NEC/third party communications about these issues.[89]Paragraph 2.e(viii) seeks communications and documents concerning Mr Friend’s alleged involvement in ending discussions between the Claimants and the Motion Picture Association (“the MPA”) at the end of 2024. Paragraph 2.e(ix) seeks communications and documents received regarding Mr Friend’s attendance at the MPA conference in March 2025. The Claimants accept that the fact and extent of Mr Friend’s discussions with the MPA, as well as the fact of his attendance at the MPA event, and the content of his discussions whilst there, are relevant to the question of whether he has breached his obligations to the Claimants. The issue of whether this resulted in the ending of discussions between the Claimants and the MPA is relevant to both liability and quantum so is partly relevant to the October trial. However again the relevant documents are principally those held by Mr Friend, not the Claimants or NEC; and there is no clear basis for concluding that there were intra-NEC or NEC/third party communications about this issue.[90]Paragraph 2.e(xi) seeks communications and documents concerning a conversation between Mr Friend and Mr Parker on 10 December 2024 and their subsequent meeting on 8 January 2025. The Claimants accept that the content of the discussion between Mr Friend and Mr Parker is relevant to whether Mr Friend has breached his obligations to the Claimants. Again, though, if this was discussed amongst those with management responsibility for the Claimant companies, those emails will have been reviewed and disclosed where relevant as part of the board-level material. Again, there is no clear basis for concluding that there were intra-NEC or NEC/third party communications about this issue. This is principally an issue for the witness evidence of Mr Friend and Mr Parker.[91]Paragraph 2.e(xiv) seeks communications and documents concerning instructions to Mr Friend not to contact clients. The Claimants accept that the instruction to Mr Friend to cease contact with customers is relevant to whether he has breached his obligations to the Claimants. To the extent that the Defendants seek instructions given to Mr Friend, these are already in his possession. Otherwise, this is not relevant to the key issues in dispute.[92]Paragraph 2.e(xv) seeks communications and documents concerning any discussions of investment opportunity in OpSec, IP House, Synamedia, Vermatrix and/or NEC’s or the NEC’s Custodians’ views on inorganic growth opportunities for the Claimants. This is only potentially relevant to the issue of whether, had Mr Friend introduced the opportunity to purchase OpSec, the Claimants would have pursued that opportunity. This is an issue for any trial on quantum and not for the expedited trial on liability.[93]Overall, therefore, I am not satisfied that the material sought is of such relevance that disclosure is necessary for the fair disposal of the proceedings and/or that there is a clear basis for concluding that intra-NEC or NEC/third party documents existed in any of the categories sought, especially bearing in mind the nature of the Investor Directors’ role. (iii): Would the specific disclosure order sought be consistent with the overriding objective?[94]Even if I had taken a more favourable view of the Defendants’ position on issue (ii), I would have been likely to conclude that the specific disclosure order sought was not reasonable, proportionate or consistent with the overriding objective.[95]Phones 4U and other decisions highlight that providing disclosure of documents which are, as a matter of law, within the control of a party, but are within the physical possession of another party, is by its nature a time-consuming and complex issue. Careful consideration needs to be given to the reasonableness and proportionality of any order, having regard to the issues in dispute and the material which will already be before the court at trial.[96]Here, the Claimants’ ability to provide disclosure is dependent on NEC providing consent to searches being undertaken of the NEC Custodians’ email accounts. Those email accounts will contain a vast quantity of documents which the Claimants have no right to review. This will include documents concerning the Claimants which are confidential to NEC and documents which are completely unrelated to the Claimants. The Claimants would therefore be unable to comply, in practice, with the order proposed by the Defendant, other than to request NEC to provide the documents voluntarily.[97]Moreover, Birkby 1 and NEC’s submissions set out in detail the very considerable logistical and financial difficulties with organising any mechanism for providing the disclosure sought, especially given the timeline to the October trial. Ms Birkby explained that the process would involve the assistance of an e-disclosure provider and a lawyer-led manual review; likely cost in excess of £100,000; and would in all likelihood not be completed before the trial.[98]Therefore, even if the documents were of marginal relevance, a specific disclosure process would be liable to waste time and costs and divert the parties’ attention from the central issues in the upcoming trial. Such a process would not, therefore, be consistent with the overriding objective.[99]The Defendants’ application for disclosure of the NEC Custodians’ personal devices raised similar issues, as it amounted to a further request for documents that are not within the Claimants’ possession. Disclosure would rely on the NEC Custodians voluntarily providing access to their devices. Any order in respect of these devices would need to be consistent with the NEC Custodians’ Article 8 right to privacy; and any mechanism for obtaining such documents would be similarly problematic in reasonableness and proportionality terms. It was also otiose insofar as it related to Mr Joseph who only used NEC devices for the purposes of his role.

Conclusion

[100]For all these reasons the specific disclosure application is dismissed.

The non-party disclosure application

[101]The non-party disclosure application sought the same material as the specific disclosure application but was only pursued in the event that the specific disclosure application failed on the “control” point, which it did not.[102]The non-party disclosure application has therefore become unnecessary. Had it been pursued the same difficulties as led to the specific disclosure application being dismissed would have applied.

Conclusion

[103]For all these reasons the Defendants’ applications are dismissed.