Application For Third Party Disclosure Can Be Served Abroad Where The Documents Are Within The Jurisdiction

Published date06 October 2022
Subject MatterLitigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
Law FirmHerbert Smith Freehills
AuthorMs Anna Pertoldi and Maura McIntosh

The Court of Appeal has upheld an order permitting an application for third party disclosure to be served on a respondent outside England and Wales, in circumstances where the documents sought were located in England: Gorbachev v Guriev [2022] EWCA Civ 1270.

The decision shows that the courts may permit an application for third party disclosure to be served on a respondent abroad, at least where the documents are within the jurisdiction. This is contrary to a previous High Court decision which held that none of the jurisdiction "gateways" applied to an application for third party disclosure, though in that case the documents as well as the respondent to the application were abroad.

The present decision highlights that the well-established presumption against extra-territoriality in interpreting legislation may have less force where the matter the court is concerned with may be seen as within the jurisdiction, even if the persons against whom an order would be made are abroad.

The decision leaves open the question of whether the court has jurisdiction to make a third party disclosure order against a respondent abroad, and thus to permit service of the application out of the jurisdiction, where the documents are also held abroad. This question was best left to be resolved in a case where it would make a difference - though the court noted that such a case is likely to be rare, as it would rarely be appropriate to exercise the jurisdiction to make an order against documents abroad (if such jurisdiction exists) due to the risk of trespassing on the letter of request procedure.

It is worth noting that the jurisdictional gateways have been expanded significantly from the beginning of October, including to allow certain applications for disclosure against non-parties to be served out of the jurisdiction. However, the new gateway for "information orders against non-parties" does not apply to an ordinary application for third party disclosure. It is limited to an application for disclosure to obtain information regarding the true identity of a defendant (or potential defendant) and/or what has become of the property of a claimant or applicant - ie, essentially, applications for Norwich Pharmacal and Bankers Trust orders.


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