July 29 2024

Full Disclosure, Sub-Contractors And Third Party Control Of Documents

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What does it mean to have ‘control of documents’ for the purposes of a party’s disclosure obligations? This is a crucial question for all business caught up in litigation and recent clarification from the court is welcome. The award-winning litigation lawyers at ParrisWhittaker in the Bahamas and Jamaica advise organisations and businesses in a range of legal disputes.

Disclosure obligations

Under The Supreme Court Civil Procedure Rules 2022, the parties to litigation are required to disclose to each other any “directly relevant” documents that undermine or help their case. To disclose means revealing that the document does or has existed.

The rules also state that a document is “directly relevant” if the party with control of the document intends to rely on it – or it undermines their case or supports the opposing side’s case.

It is well-established in law that arrangements or understandings giving a party practical or ‘de facto control’ of a third party’s documents is sufficient to constitute control for the purpose of disclosure purpose. But what does it mean in practice to be in ‘de facto control’ of a document?

This was the key issue in this recent ruling. The decision has persuasive effect on the courts in the Bahamas, Jamaica and wider region and should be noted.

What’s the background?

In 2021, a contract for the supply of covid-19 lateral flow test kits  was concluded between the claimant companies and the defendant (the Secretary of State for health and social care in England and Wales). The defendant terminated it on grounds that included violations of labour law and worker payments in a Chinese factory.

In the course of litigation, the defendant sought a declaration that documents in the possession of sub-contractors and sub-sub-contractors were within the control of one of the claimant companies for the purposes of its disclosure obligations.

The High Court concluded that the company did have practical control over the documents in question.  It reiterated several principles, stating clearly that there was no reason in principle why a contractor could not enjoy practical control over certain documents held by a sub-contractor or a sub-sub-contractor.

Furthermore, a claimant’s “free and unfettered access was not a necessary precondition for control”.

The court granted a declaration that documents within the possession of the sub-contractor and the sub-sub-contractor were within the claimants’ control. Therefore, they were disclosable.

What does this mean?

If you are involved in litigation or contemplating litigation, you have clear disclosure duties in relation to documents and information that support your case and/or the other side’s. That may extend to documents outside of your actual possession, to documents or information with third parties, including sub-contractors (or sub-sub-contractors as in this case).

If you have any questions around the extent of your disclosure obligations at any point, contact the award winning commercial litigation lawyers at ParrisWhittaker at info@parriswhittaker.com or +1.242.352.6112

1Mornington 2000 [2024] EWHC 1708

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