Here is that familiar issue of ‘control’. This piece on the Parris Whittaker blog talks about how the UK’s High Court recently issued an important ruling on disclosure in the context of companies and their agents.
As the author explains, “disclosure is an important stage during the litigation process and requires the parties to disclose documents and information that are relevant to issues in dispute. The duty of disclosure is limited to the information within the party’s ‘control’. It’s not uncommon for disputes to arise in relation to the disclosure duty, often where documents are held by a third party who is not a party to the dispute.”
This ruling demonstrates that no matter whether the third party is acting as an agent, the context of the duty of disclosure is always a question of fact and based on the actual relationship between the agent and the relevant party.
Disclosure can be ordered in respect of documents held by third parties who are ostensibly acting as a party’s agent for the purposes of ‘control’ of documents and disclosure