High Court Orders Broad "Train Of Inquiry" (Or Model E) Disclosure On Key Issue In Dispute

• Published date: 09 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Arbitration & Dispute Resolution
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

In a recent decision, the High Court has made a rare order for disclosure to be given under Model E of the Disclosure Pilot at PD51U - ie old-fashioned "train of inquiry" disclosure, of the sort that applied before 1999 when the Civil Procedure Rules introduced a more limited concept of "standard disclosure": Ras Al Khaimah Investment Authority v Azima [2022] EWHC 1295 (Ch).

The debate in this case was between Model D and Model E disclosure. Model D essentially replicates standard disclosure, ie those documents which are likely to support or adversely affect any party's case. The difference between the two models is that Model E also includes "train of inquiry" documents, or those which "may lead to a train of inquiry which may then result in the identification of other documents for disclosure" (because those other documents are likely to support or adversely affect any party's case).

Even before the introduction of the Disclosure Pilot in 2019, with its focus on restricting disclosure to what is really needed to determine the issues in dispute between the parties, orders for train of inquiry disclosure were already rare. This is illustrated for example by Berezovsky v Abramovich [2010] EWHC 2010 (considered here) in which such an order was refused despite the case involving huge sums and involving allegations of fraud.

It is important to note that, although train of inquiry disclosure was ordered in the present case, it was ordered only in relation to a particular issue, which the court described as a "core critical issue" in the case. It was also significant that there were allegations of a cover-up, and that there had clearly been a substantial loss of documentation, whether or not that was the result of a deliberate policy by the respondent (which the judge could not assess in the context of the application). The decision does not indicate that a more expansive approach will be taken to ordering train of inquiry disclosure, but is of interest in illustrating the circumstances in which such an order may be considered appropriate.

The decision also considers an application for security for costs, which is addressed in our separate blog post here.

Background

As explained in our separate post on this case, applications relating to disclosure and security for costs arose in the context of a retrial of the defendant's (Mr Azima's) counterclaim against the original claimant, the Ras Al Khaimah Investment Authority (RAKIA), relating to allegations that Mr...