This is an insightful write up by Syedur Rahman, one of the Partners at Rahman Ravelli, all about the Berkeley Square Holdings Ltd and Others v Lancer Property Asset Management Ltd and Others  EWCA Civ 551. The piece investigates whether a party to a litigation has control over documents and how they fall into the remit of disclosure under the party’s obligations under Practice Direction 51U.
Ultimately this isn’t a new topic, neither is it something that is uniquely applied to eDisclosure, as it applies to all documents regardless of whether they are electronic or not (as illustrated by the precedent set in Lonrho Ltd v Shell Petroleum Co Ltd  1 WLR 627)
The article usefully sets out six key factors that determine whether control, and therefore a requirement for those documents to be included in disclosure, exists. I would urge you to take a read of these.
At the conclusion of the case, “…the court understood that there was an ongoing arrangement or understanding that the claimants would be able to access documents held by the related parties.” This means that they needed to be included in the disclosure exercise being undertaken.
I believe it’s important that anyone undertaking litigation considers whether other group companies or related individuals hold relevant documents that would be subject to disclosure requirements. As such, when considering the technical aspects of case, this can add additional sources, systems and complications that should be considered as early as possible in the process.
If you’d like to hear more about how to best manage eDisclosure exercises, please contact me and I would be happy to tell you more.
In relation to Lonrho, this judgment is one of a few where there is an expansion of what is considered to be in a party’s control in relation to the disclosure exercise. If there is an arrangement or understanding between two parties whereby the documents are under the practical control of the disclosing party, this could be sufficient for the documents to be disclosed. The understanding or arrangement can also be inferred from previous actions or the circumstances of the case.