Disclosure and documents within a party's "control"/translation of expert reports

http://www.bailii.org/ew/cases/EWHC/Ch/2015/2997.html

The defendants sought disclosure of documents which were not physically in the possession of the claimants but which were said to be under their control (pursuant to CPR r31.8). After analysing the relationship between three individuals and the claimant, Hildyard J concluded that, if the relationship was governed by English law, it would be analogous to an agent or nominee relationship. However, that did not entitle the defendants to disclosure of all documents relating to the claimant: "only to documentation relating to the course or conduct of the agency relationship". Furthermore, companies which were wholly owned by the three individuals were not thereby agents of the claimant: "they would be agents (or, perhaps more accurately, sub-agents) only if and to the extent that they undertook the agency role primarily assigned to the relevant named individual". In any event, except in exceptional circumstances (such as a one-man company), a shareholder does not "control" the company's documents, since the consent of the directors is required.

There would also be practical difficulties in enforcing a disclosure order in Russia. The judge therefore ordered the claimant to write to the three individuals explaining that the claimant required them to provide certain defined documents for the purpose of the proceedings.

A further issue in the case was whether the claimant's expert report should be translated into Russian for the benefit of one of the defendants whose English is very limited. This had become necessary once the defendants' lawyers had ceased to act for them. The claimant argued that it would be expensive and time consuming to translate the report, which was long and technical. Nevertheless, a translation was ordered, for reasons of fairness. The defendants were already at a disadvantage in not having legal representation and being unable to leave France to contest the matter: "Whilst I am not convinced that to deny them such opportunities would of itself result in a breach of any enforceable right, it seems to me that the balance plainly favours eliminating this potential source of apparent potential unfairness".