Alexandra Boreham and Edward Spenser at Taylor Wessing discuss a recent disclosure hearing; Quartz Assets LLC and another v Kestrel Coal Midco Pty Ltd  EWHC 2675 (Comm).
The piece talks about how the claimant sought an order for the defendant to 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.
I have talked in a number of posts about the issue of control and agency. Generally, when it comes to control over documents, there are usually three elements that need to be considered to determine whether a party has control over documents:
- Consent from the subsidiary in respect of documents;
- How the documents would be provided; and
- The quality of consent – is it free and unfettered access or responding to specific requests.
As always, the key is thinking from the start who might hold relevant documents and who has control over them.
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.