“Part 31.6 Standard disclosure—what documents are to be disclosed 31.6 Standard disclosure requires a party to disclose only— (a) the documents on which he relies; and (b) the documents which— (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case…” 31.6 Standard disclosure requires a party to disclose only— (a) the documents on which he relies; and (b) the documents which— (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case…”
“31.7— Duty of search 31.7(1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c). (2) The factors relevant in deciding the reasonableness of a search include the following— (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document; and (d) the significance of any document which is likely to be located during the search. (3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.” (2) The factors relevant in deciding the reasonableness of a search include the following— (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document; and (d) the significance of any document which is likely to be located during the search. (3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.”
“31.8— Duty of disclosure limited to documents which are or have been in a party’s control 31.8(1) A party’s duty to disclose documents is limited to documents which are or have been in his control. (2) For this purpose a party has or has had a document in his 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.” (2) For this purpose a party has or has had a document in his 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.”
“Purpose of Agreement 2.1 The purpose of this Agreement is to facilitate the delegation of powers to the Council and officers employed within SB to enforce the provisions of the legislation set out in Schedule 1 within the area of the Partners. The Agreement encourages the exchange of information and a working partnership approach between the Council and the Partners in relation to the listed legislation.”
“Assistance to SB 5. The Council may request assistance from any other council or any other enforcement agency in respect of any SB operation. Authorised officers of the Council may also assist in any SB operation. Any officer of an enforcement agency or council authorised by the Council for the purposes of giving such assistance or any Council authorised officer giving such assistance shall be deemed to be an authorised officer of SB.”
“I accept that the mere fact that a party to a litigation may be able to obtain documents by seeking the consent of a third party will not on its own be sufficient to make that third party's documents disclosable by the party to the litigation. They are not within his present or past control precisely because it is conceivable that the third party may refuse to give consent. But what happens where the evidence reveals that the party has already enjoyed, and continues to enjoy, the co-operation and consent of the third party to inspect his documents and take copies and has already produced a list of documents based on the consent that has been given and where there is no reason to suppose that that position may change? Because that is the factual situation with which I am confronted here In my judgment, the evidence in this case sufficiently establishes that relevant documents are and have been within the control of the claimant. I should emphasise that my decision does not turn in any way on the existence of a common corporate structure. My decision depends on the fact that it appears from the evidence that a general consent has in fact been given to the claimant to search for documents properly disclosable in this litigation, subject only to the caveats contained in paragraph 4 of Mr. Griffin's witness statement concerning corporate acquisition documents and unreasonably onerous requests.”
“37. …Miss Campbell…pointed to evidence in Ms Webb's witness statement that Mr Hilmarsson obviously had day to day control of the Aviject operation and was ultimately able to procure the delivery up of the documents to TAL. She referred to a recent decision of Floyd J in Schlumberger Holdings Ltd vElectromagnetic Geoservices AS[2008] EWHC 56 (Pat) in which he ordered the claimants to disclose documents belonging to other companies within the Schlumberger group which were not themselves parties to the action on the basis that these documents were under the claimant's control within the meaning ofCPR 31.8 (1). He did so because the claimant had already included documents in the possession of those companies in its own lists and because the evidence revealed that “the party has already enjoyed and continues to enjoy the co-operation and consent of the third party to inspect his documents and take copies.” 38. It is clear from this passage in his judgment that the facts of that case were special because as Floyd J himself recognized earlier in his judgment, the authorities on disclosure do not treat the documents of a subsidiary as those of the holding company simply on the basis of shareholder control.”
“17. In Ardila Investments v ENRC[2015] EWHC 3761 (Comm) , the claimant, Ardila, sought disclosure of documents held by two subsidiaries, Bamin and Pedra Cinza, of the defendant parent company, ENRC. After setting out the relevant case law, including the Schlumberger case, Males J, as he was then, concluded as follows: "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… "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 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." 18. Males J held on the facts that ENRC did not have control in that sense over the documents requested. Ardila had relied primarily on two matters as evidence of the relevant kind of agreement: i) First, certain obligations ENRC had undertaken to Ardila in a share purchase agreement, which included the obligation to keep Ardila fully informed in respect of its subsidiaries' performance of certain payment conditions. As to that, Males J took the view, at [17] that: "…extensive as those obligations are, they fall well short of any understanding or arrangement which would enable ENRC to have free access to all of Bamin's or other subsidiaries' documents. It is one thing to undertake specific obligations of that nature, it is quite another to permit free range through the documents, including those held electronically, of the subsidiary company, extending much more widely." Second, evidence of the parent company's general counsel that its subsidiary would comply with any request because it would be in the subsidiary's commercial interest to do so. Males J found this to be insufficient too, explaining at [21] that: "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 cooperation 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." 19. It is important, in my judgment, not to read too much into that last quotation from Males J's judgment in Ardila. The particular arrangement found to exist in Schlumberger was an arrangement granting to the litigating party general access to the third party's documents enabling it to go through them looking for material relevant to the litigation. What was alleged to exist in Ardila, but found not to exist, was something similar. That does not mean there cannot be 'control' unless there is a grant of that kind of wholesale access to documents. 20. Take the paradigm case of an enforceable contractual right to be provided with documents of some particular description, upon request, perhaps quarterly management accounts for a business in which the litigating party has invested, or monthly stock reports for a business to which the litigating party has lent money or provided stock on a 'sale or return' basis. That would only ever entitle the litigating party to obtain documents of that description, by making an appropriate request. But there would plainly be control as that is defined for disclosure purposes, that is to say control over documents that fell within the scope of the contractual right. In this context, the need for the litigating party to make a request, to trigger the obligation on the third party to provide the documents, is not a material qualification upon the right to obtain the documents. The need for a request does not stop the entitlement from being "presently enforceable ", in the sense used by Lord Diplock in Lonrho v Shell, supra, at 635G-H. 21. As illustrated by Ardila, the fact that some particular request or requests to a third party for assistance by way of the provision of documents has or have been met without demur does not mean, without more, that there was or is some standing consent to meet such requests, or that some promise (legally enforceable or not) to meet future requests arises out of that prior assistance. That said, it is not difficult to envisage in principle, although it does not arise on the facts before me, the possibility of repeat behaviour sufficient to imply such a promise, i.e. to involve a standing consent as to the future. But all that is rather by the way for the present case, in which there was an express, written, standing consent, and the only real questions are what it meant and whether it persists today. To the extent that Ms Tolaney QC submitted that only a Schlumberger-type arrangement, granting general access to inspect a third party's documents and take copies to provide by way of disclosure, confers control, I do not agree.”
“…any document held in electronic form. It includes, for example, email and other electronic communications such as text messages and voicemail, word-processed documents and databases, and documents stored on portable devices such as memory sticks and mobile phones. In addition to documents that are readily accessible from computer systems and other electronic devices and media, it includes documents that are stored on servers and back-up systems and documents that have been deleted. It also includes metadata and other embedded data which is not typically visible on screen or a print out…”
“The concept of “right to possession” inCPR 31.8 (2)(b) covers a situation where a third party is in possession of documents as agent for a litigant.”
“The defendant will, by27th March 2020 , formally and in writing, request Mr David Bourne to produce to it all books, correspondence and documents (including emails and other electronic material) under his control relating to the defendant’s affairs and will thereafter use its best endeavours to secure Mr Bourne’s compliance with such request. The defendant will, by17 April 2020 , file and serve a witness statement identifying what step have been taken to comply with the above order exhibiting thereto the request together with any response thereto and subsequent correspondence.”
“The date range for the purposes of relevance under CPR, rr.31.6 to 31.7 shall be documents originating or sent and/or received between1 October 2014 to22 July 2016 .”