This is an interesting overview by Anna Pertoldi and Maura McIntosh from Herbert Smith Freehills of the recent Kelly v Baker [2021] EWHC 964 (Comm) case. In this specific case the claimants applied for Model E or the “wide search-based” disclosure model under the disclosure pilot to be used; and there were questions over the “control” of an email server.
The main basis for applying for this model was based on the fact that there were allegations of fraud, and because there was a great deal of evidence believed to be in the emails that would shed light on the events and communications around the subject of the dispute. Moulder J ordered for Model D to be applied under the disclosure pilot, as Model E was not justified. This was based on the rationale that followed from State of Qatar v Banque Havilland SA [2020] EWHC 1248, where the judgement set out that if Model E is to be justified it needs to be related to the specific issues of the case and some explanation as to the nature of the enquiry envisaged need to be provided. Sounds complex does it – well it is quite!
In respect of “control” of the email server, the server was in hands of a purchasing entity where one of the defendants (Mr Braid) was still a director of the company and the other (Mr Baker) was a former director. The authors detail the facts and rationale behind the decision in the article, but in essence: “The judge concluded that the claimants had not established that Mr Braid had “control” of the server data…[and] the evidence did not support a finding of free and unfettered access [for Mr Baker] and thus a finding of “control” as a matter of contract.”
The main lesson that one can take from this (and indeed similar cases) is that if you are considering applying for Model E disclosure, broadly based on the old-style Peruvian Guano or “train of inquiry” disclosure, then you need to provide a very detailed and reasoned case as to why it is appropriate, along with having a good idea of how it would likely be applied.
If you’d like to know more about our thinking on Model E and the rest of the Disclosure Pilot Scheme, or see our paper, take a look at this link below: https://www.alvarezandmarsal.com/insights/disclosure-pilot-scheme-inside-view
Against that background, the present decision underlines that exceptional really means exceptional. A party seeking Model E disclosure will, it seems, have to do more than show that it is an important, high value case, or that it involves allegations of fraud. Further, the disclosure sought must be linked with specific issues and some explanation provided as to the nature of the enquiry envisaged.
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