Tonzip Maritime Ltd v Coral Energy Pte Ltd
[2024] EWHC 1970 (Comm)
Salim Moosa & Ors v Karim Issa Mawji
16 February 2024
[2024] EWHC 335 (Ch)
High Court
Two sides were in court over business dealings. One side wanted more documents from the other side right before trial. The judge said no, because the request was too late and not important enough to delay the trial. The judge also said it wasn't fair to ask for documents held by other companies when the side hadn't asked for them earlier.
Key Facts
- •Claimants (South African residents) allege breach of fiduciary duty, trust, and contract by the Defendant in managing their property portfolio (2000-2019).
- •Dispute centers on the Defendant's role in restructuring the portfolio, including the use of Liechtenstein entities.
- •Claimants sought disclosure of documents under CPR PD 57AD, paragraph 17, shortly before trial.
- •Defendant denied control over documents held by third-party entities, arguing they were not within his possession or control.
- •Claimants' application for disclosure was made late and lacked sufficient evidence of non-compliance by the Defendant.
- •The court considered whether documents held by third parties were under the Defendant's control under the principles in *Berkeley Square*.
Legal Principles
CPR PD 57AD, paragraph 17 requires a two-stage approach: (1) demonstrating inadequate compliance with a disclosure order and (2) showing that a further order is reasonable and proportionate.
Sheeran v Chokri [2021] EWHC 3553 (Ch)
To satisfy stage 1 of PD 57AD, paragraph 17, there must be more than general suspicion; a likelihood of further documents existing must be shown.
Sheeran v Chokri [2021] EWHC 3553 (Ch)
An application under PD 57AD, paragraph 18 (varying a disclosure order) is more difficult to satisfy than one under paragraph 17, requiring necessity for the just disposal of proceedings.
White Book, Vol 2 at 2AA-72.1
Late disclosure applications face a heavy burden to justify the delay, demonstrate non-compliance, and show the order is reasonable, proportionate, and necessary for the just disposal of proceedings.
Ventra Investments Limited v Bank of Scotland PLC [2019] EWHC 2058 (Comm), Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), Nesbit Law Group LLP v Acasta European Insurance Company Limited [2018] EWCA Civ 268
Control over documents, for disclosure purposes, includes physical possession, right to possession, or right to inspect/copy.
PD57AD, paragraph 1.1 of Annex 1
In determining control over documents held by a third party, the relationship between the parties is irrelevant; there must be an arrangement or understanding for access.
Berkeley Square v Lancer Property Asset Management Ltd [2021] EWHC 849
Outcomes
The Claimants' application for disclosure under CPR PD 57AD, paragraph 17 was dismissed.
The Claimants failed to demonstrate inadequate compliance with the existing disclosure order. The application was made too late, lacked sufficient evidence, and was not reasonably proportionate given the proximity to trial. The court declined to infer control over third-party documents.
The informal application to adjourn the trial was also dismissed.
The application for disclosure was unsuccessful, and granting it would have inevitably led to an adjournment, prejudicing the Defendant and other court users.
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