The Weekly Roundup: The Caring Edition

• Published date: 23 December 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: 1 Chancery Lane
• Author: Mr Andrew Spencer and Henk Soede

In a week dominated, for the team at 1CL at least, by excitement over the sudden appearance of snow (in Winter! Fancy!), it's been nice to see a brace of High Court judges showing their caring side. The wonderfully named Peter MacDonald Eggers QC showed a bit of empathy for parties trying to extract disclosure from non-parties, and His Honour Judge Bird displayed a commendably realistic approach to claims for future care, with a particularly instructive approach to those Claimants who accept less care than they need because it's all that's available.

Disclosure, control and third parties: Various Airfinance Leasing Companies v Saudi Arabian Airlines Corporation [2021] EWHC 2904

Earlier this month the High Court handed down judgment in Various Airfinance Leasing Companies v Saudi Arabian Airlnies Corporation [2021] EWHC 2904, a case which neatly sets out the important differences between "control" of documents; "possession" of documents, and the court's powers to make orders in respect of documents which are not in a party's control.

The claimants sought an order for disclosure of data from the mobile phones of its non-executive chairman and a former employee.

The duty to disclose documents "is limited to documents which are or have been in (the party's) control" (CPR 31.8). There is such "control" where the document is or was in that party's physical possession; when the party has or has had a right to possession of the document; or when the party has or has had a right to inspect it or take copies.

Where a party has "control" of a document, the court may order disclosure, meaning stating whether the document exists or has existed. But this does not necessarily mean the party will be ordered to produce the document. If it no longer exists or is no longer in that party's control, for example.

In this case, the question whether the telephone data was in the defendants' control was a question of Saudi Arabian law. The answer, according to Saudi law, was "no". This might well have been different had this been a question of English law: the non-executive chairman and former employee might owe fiduciary obligations to assist the defendants with disclosure.

The judge held that the court's jurisdiction to order a party to use "best endeavours" to obtain documents from third parties depended on whether these documents were within the disclosing party's "control". If they were, then such an order might well be made. However, if the documents were not within that...