Analysis
The claimant made a third-party disclosure application under CPR 31.17 and s34 Senior Courts Act 1981 against Forsters LLP, English solicitors instructed on behalf of Cypriot trustees. Forsters LLP’s position was that the trustees were the only proper parties to the application under CPR 31.17, and that any order for disclosure should be made against them. Permission was granted by HHJ Pelling QC pursuant to CPR PD 6B(20) to serve the application for third-party disclosure on the trustees out of the jurisdiction, and for the application to be served by alternative means pursuant to CPR 6.15, namely by delivery to Forsters LLP’s office within the jurisdiction and by email to two specified addresses. The trustees applied to set aside the order. Jacobs J ([2022] EWHC 1907 (Comm)) upheld the order. The trustees appealed.
The issues to be determined were:
- (1) Does the court have jurisdiction to make an order for disclosure of documents against a third party outside England and Wales?
- (2) If such jurisdiction exists, was the judge wrong to exercise his discretion to permit service out of the jurisdiction?
- (3) Was the judge wrong to permit alternative service on the trustees?
Held:
- (1) Section 34, Senior Courts Act 1981 allows an application to be brought against a third party out of the jurisdiction for an order to produce documents which are located within England and Wales (para [88]). Although the principle of territoriality has an important role in considering the scope of s34 in relation to documents located outside England and Wales, it has little or no application in relation to documents in the jurisdiction. Such an interpretation does not trespass unreasonably upon the ‘letter of request’ procedure governed by the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters concluded on 18 March 1970.
- (2) Obiter: in view of the availability of the letter of request procedure, it would only be in an exceptional case that it would be appropriate to exercise the jurisdiction in relation to documents held abroad; Nix v Emerdata Ltd [2022] distinguished (para [90]).
- (3) The words ‘claim’ and ‘proceedings’ in gateway (20) (CPR PD 6B, para 3.1(2)) should not be narrowly construed; they include both an application for pre-action disclosure and an application for third-party disclosure. ED&F Man Capital Markets LLP v Obex Securities LLC [2017] approved (para [34]).
- (4) The judge’s exercise of discretion to permit service out of the jurisdiction could not be said to have been wrong (para [94]).
- (5) There was no error in the judge’s conclusion to permit alternative service on the trustees. While the judge did not expressly mention the claimant’s delay in making the application, which was a material factor, there was no reason to doubt that the judge had it well in mind (para [98]).
Appeal dismissed. The question as to whether an order for third-party disclosure should be made was remitted to the Commercial Court.
JUDGMENT MALES LJ: [1] The principal issue on this appeal is whether an order for disclosure of documents can be made against a third party outside England and Wales pursuant to s34 of the Senior Courts Act 1981 (‘the SCA’) and CPR 31.17. Jacobs J held in this case that such an order can be …Continue reading "Gorbachev v Guriev [2023] WTLR 395"