The court usually seeks to adopt a pragmatic approach to disclosure. But to persuade it to exercise its powers to order disclosure you need to show that the basic requirements for disclosure are met, such as the other party's "control" over the documents you are seeking.
BACKGROUND AND FACTS
The question of whether documents were in a party's "control" arose in Various Airfinance Leasing Companies v Saudi Arabian Airlines Corporation  EWHC 2904. The dispute related to the interpretation of clauses which affect the rent payable in aircraft leasing agreements.
Two of the key figures in the negotiation of the leases were senior employees of Saudi Airlines. In addition to seeking disclosure of documents held on their work mobiles, the Claimant was also seeking an order that the search by the Defendant for documents should extend to data held on the personal mobiles of those senior employees.
The Court of Appeal and the Commercial Court had considered the scope of disclosure in relation to personal devices in the cases of Phones 4U and Pipia in early 2021. (See our summary of those decisions here.) In Phones 4U it had been accepted that work related emails and messages on personal devices were within the "control" of the Defendant and the court had been prepared to make a "voluntary" order for disclosure in line with the pragmatic approach of the court under the Disclosure Pilot Practice Direction (PD51U). The same approach was taken in Pipia.
Therefore, the Claimant in the Saudi Airlines case may reasonably have anticipated getting its order for disclosure. However, in considering their application the court made an important distinction between that case and the 2021 decisions.
In order for "control" to be established, it needs to be shown that the party against whom an order for disclosure is sought has either a legally enforceable right and/or a standing or continuing arrangement giving it access to the relevant material. Simply pointing to a close legal or commercial relationship is not sufficient.
Here, while both individuals whose personal devices the Claimant sought documents from, were senior employees of the Defendant, Saudi Airlines, their employment contracts were governed by Saudi law. The contracts had no express provisions requiring the maintenance or return of electronic records to their employer. The Claimant therefore had to demonstrate that Saudi law permitted access, and the court was not satisfied it had.
The court did indicate that a presumption of control in light of an employment relationship might have been accepted if English law had governed the employment contracts. But that was not the case on the facts.
This outcome suggests that if you are considering disclosure in cross border litigation, the ability to obtain documents from custodians overseas may be more limited than for custodians based in England, depending on their relationship with the party from whom you are seeking disclosure. The specific terms of the relevant employment or other contracts, any applicable corporate policies and local law provisions may all affect the position.
In approaching disclosure under the Pilot Practice Direction, PD 51U, the court has recently been willing to make more flexible orders, like those in Phones 4U.
Here, the Claimant had proposed that in line with the spirit of the Disclosure Pilot and the CPR generally the court should make a "best endeavours" order: that Saudi Airlines use its "best endeavours" to obtain access to any relevant data on the two individuals' personal mobile phones.
However, the court dismissed this request noting that "control" was a pre-requisite to a disclosure obligation. "Best endeavours" in practice imposes a high level of obligation on a party and in the absence of a right of access, there was no basis for making such an order.