Disclosure is an important stage in commercial litigation and may lead to the court making orders requiring third parties to disclose documents and other information. The award-winning commercial lawyers at ParrisWhittaker are specialists in representing businesses in commercial disputes and throughout the litigation process.
The disclosure duty refers to the legal obligation on the parties to litigation to disclose documents, relevant to the dispute, to each other. An interesting case1 from the High Court in England and Wales provides important clarification on the court’s powers in relation to documents that are in the possession of third parties.
What’s the background?
The claimants and a third party (which was party to the litigation) sought disclosure in the course of wider litigation relating to lease agreements over 50 Airbus aircraft.
Disclosure was sought in relation to data held on the personal devices owned or used by two individuals – one employed by the defendant and other an ex-employee. It was argued that they were critical figures in the negotiation, execution and performance of the lease agreements.
An application was made for an order that the defendant use “best endeavours” to secure the production of the documents held on the individuals’ mobile telephones (and/or an order that they produce the devices to independent IT consultants to be searched for documents).
However, under the Civil Procedure Rules (CPR) in England and Wales, the court had no authority to require a party to exercise best endeavours to obtain or to request a third party to provide documents for disclosure. An order could be made if ‘control’ is established. Even where there is no control, the court has a separate power to make orders requiring a third party to provide disclosure.
Here, the court ruled that the data held on the individuals’ mobile devices was not within the defendant’s control for the purposes of disclosure. So where the party has no relevant control over the documents in question, the court has no power (without express provision in the CPR) to order a party to use its “best endeavours” to order disclosure of documents.
Therefore it refused to make the order sought.
What does this mean?
Where a party to a dispute requires disclosure, strategic legal representation is crucial. A misguided application for disclosure, for example, may be expensive and unsuccessful. It may be more appropriate in some cases to make an application for a disclosure order directly against a third party by way of a Norwich Pharmacal order.
Disclosure orders are not always straightforward to obtain, but the specialist disclosure lawyers at ParrisWhittaker have a successful track record in securing disclosure orders against litigants and against third parties.
Contact our expert commercial lawyers for robust and strategic advice as early as possible.
