- Home
- News & insights
- Insights
- Disclosure – out of control?
- On this page
10 November 2021
Disputes Quick Read – 93 of 101 Insights
Disputes Quick Read: Disclosure – out of control?
- Quick read
At a recent disclosure hearing in Quartz Assets LLC and another v Kestrel Coal Midco Pty Ltd [2021] EWHC 2675 (Comm), the claimant sought an order that the defendant extend its disclosure searches for pre-contractual negotiations and correspondence to include documents held by a third party (TP). The defendant agreed that the documents would be relevant but resisted disclosure as the documents were not in its control.
Background
The second claimant and the defendant entered into a mezzanine subscription agreement in 2018. In the lead up to the agreement, TP was communicating with potential senior and mezzanine investors (including the second claimant) about possible financing and negotiating the terms of the agreement on behalf of the defendant pursuant to a retainer (to which the defendant was not a party).
There was a 'no agency' clause in the retainer, which provided that TP did not have authority to take action or sign any document on behalf of the defendant or otherwise bind it in any respect.
The disclosure order
The Judge found that:
- the 'no agency' clause did not prevent TP from potentially altering the defendant's legal relations by making representations during negotiations
- there was therefore an agency relationship between TP and the defendant, even though the defendant was not a party to the retainer and was not paying TP's fees
- the defendant therefore had a legal right to access documents held by TP which were created during the agency relationship, in particular whilst TP was negotiating with the second claimant and other potential investors
- consequently, the documents held by TP were deemed to be within defendant's 'control' within the meaning of CPR 31.8 (where a party's documents are in the hands of a servant or agent).
The judgment provides useful guidance on agency in the context of disclosure and is a helpful reminder that parties should consider at an early stage whether any third parties might hold relevant documents which could be deemed within either party's control.
The judgment also gives insight of how the court will approach applications under the disclosure pilot scheme. Central to the decisions are the usual principles of reasonableness and proportionality, but close attention will be paid to the agreed issues for disclosure, which is one of the key new requirements introduced by the disclosure pilot.
Find out more
To discuss the issues raised in this article in more detail, please reach out to a member of our Disputes & Investigations team.
In this series
Wirral Council v Indivior plc: Court of Appeal upholds strike out of opt-in representative action securities claim
30 January 2025
What are the litigation trends in 2025?
22 January 2025
by Multiple authors
Changes to the privilege rules between companies and shareholders
6 December 2024
Victory for energy companies/defeat for the environment?
14 November 2024
Failure to prevent fraud offence to come into force in September 2025
14 November 2024
by Emma Allen
Essex Cricket Club charged by Cricket Regulator
30 October 2024
by Multiple authors
UK introduces mandatory reimbursement rules to combat APP fraud
15 October 2024
New SFO Director announces bold plans to tackle fraud
21 March 2024
by Emma Allen, Amy Cheng
First of its kind judicial guidance on the use of AI in the courts
14 December 2023
Witness familiarisation - does it affect the court's assessment of witness credibility?
13 December 2023
The use of AI in Trial Witness Statements post-PD 57AC
23 October 2023
by Multiple authors
CAT to hear the first application for a collective settlement approval order
17 October 2023
Pre-Action Protocols – what is different?
12 September 2023
by Tom Charnley
Failure to prevent fraud – a new offence?
14 August 2023
by Multiple authors
Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
by Multiple authors
The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
by Multiple authors
Disputes Quick Read – developments in the fixed costs regime
3 May 2023
by James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
by James Bryden
Disputes Quick Read: Breaking the north/south divide?
5 April 2023
by Tom Charnley
Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
by Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
by Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
by Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
by Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
by Multiple authors
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
by Multiple authors
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
by Jess Thomas
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
by Tim Strong
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
by Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
by Nick Storrs
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
by Multiple authors
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
by Multiple authors
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
Disputes Quick Read: A different approach to witness evidence
11 March 2020
by James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
by Stuart Broom
Disputes quick read: climate change activism by litigation
26 February 2020
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
21 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
by Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
Related Insights
Two recent decisions on without prejudice privilege and unilaterally commissioned third-party reports
by Alexandra Boreham and Tom Charnley
Non-Disclosure Agreements - updated guidance from the SRA
