Court Has Power To Serve Disclosure Application On Third Party Outside The Jurisdiction

• Published date: 12 September 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
• Law Firm: Debevoise & Plimpton
• Author: Mr Christopher Boyne, Patrick Swain, Julia Caldwell and Callum Murphy

INTRODUCTION

In Gorbachev v Guriev & Ors [2022] EWHC 1907 (Comm), the High Court held that it had jurisdiction to permit service of a third-party disclosure application outside the jurisdiction of England and Wales, and that in appropriate cases (such as the present where the documents were actually in England and held by English solicitors), the Court will be inclined to exercise its discretion to grant such permission. Nonetheless, the Court noted that the default route for obtaining disclosure from overseas third parties remains the letter of request regime.¹

Notably, this decision is at odds with the recent judgment in Nix v Emerdata Ltd & Anor [2022] EWHC 718 (Comm) ("Nix") (considered here), where the Court held that it did not have the power to grant permission to serve a third-party disclosure application outside the jurisdiction.

BACKGROUND

This application arises out of a dispute between Alexander Gorbachev (the "Claimant") and Andrey Guriev (the "Defendant"), in respect of their interests in a valuable Russian fertiliser business, PJSC PhosAgro. One of the key issues in dispute is how, and why, the Claimant was financially supported by two Cyprus trusts of which T.U. Reflections Limited and First Link Management Services Limited (the "Trustees") are the trustees.

In furtherance of the primary dispute, the Claimant sought to obtain, pursuant to Civil Procedure Rule ("CPR") 31.17 and section 34 of the Senior Courts Act 1981 ("SCA"), an order for third-party disclosure of certain documents held by Forsters LLP ("Forsters") the English law firm advising the Trustees (the "Original Application").

Forsters alleged that the documents were held on behalf of the Trustees, that the Trustees were the only proper parties to the Original Application, and that it would therefore be inappropriate to require Forsters to give disclosure. Accordingly, the Claimant applied for, and was granted, an order joining the Trustees to the Original Application (the "Amended Application", and together with the Original Application, the "TPD Applications"), and for permission to serve the TPD Applications on the Trustees out of the jurisdiction in Cyprus.

THE LEGAL FRAMEWORK

The Court noted that it was common ground that if a party wished to apply under CPR 31.17 (Orders for disclosure against a person not party), the application must be made by an application notice, which would also need to be served on the non-party. Additionally, the Court found that CPR 6.39 (Service of...