The High Court has held that a third party’s documents were not within the defendant’s “control” for the purposes of disclosure where they were not in the defendant’s physical possession but were held by the defendant’s solicitors under the terms of a protective order issued by a US court: HTC Corporation v Nokia Corporation  EWHC B16 (Ch).
Although the case involves unusual facts, it is of interest as a relatively rare decision on the meaning of “control” for the purposes of disclosure.
The documents had been obtained as a result of the defendant’s application to the US court for third party disclosure under section 1782 (a US statutory provision that allows disclosure in support of non-US proceedings). The US order prohibited the defendant’s solicitors from showing the documents to anyone other than those specified in the order, unless the US court ordered otherwise. Those specified in the order included solicitors and counsel who appeared in the English proceedings, subject to them agreeing to be bound by the protective order.
The claimant’s counsel in the English proceedings did not agree to be bound by the protective order, as they did not wish to submit to the jurisdiction of the US court. Instead, the claimant applied in the English proceedings for specific disclosure of the documents from the defendant on the basis that the documents were in the defendant’s “control”.
CPR 31.8 provides that a document is within a party’s control if it is (or was) in his physical possession, or he has (or has had) a right to possession of it, or he has (or has had) a right to inspect or take copies of it. It was common ground on this application that CPR 31.8 does not set out an exhaustive list of the circumstances in which a party may have control of documents; the court referred in this regard to North Shore Ventures Limited v Anstead Holdings Inc  EWCA Civ 11 (see post).
The claimant argued that since the documents were held by the defendant’s solicitors, who must act on the instructions of the defendant, it was open to the court to find that as a matter of fact the documents were in the defendant’s control, even though the defendant had no right to possession of the documents.
The defendant argued that since the protective order defined who may see the documents, it was not open to the defendant to instruct its solicitors to hand over the documents either to the defendant itself or to the claimant’s lawyers directly. If the defendant sought to do so, the solicitors would be entitled to refuse on grounds that they would otherwise be in breach of the protective order.
The court (Norris J) refused the claimant’s application. There was no jurisdiction to make the order as the documents were not in the defendant’s “control” in the relevant sense. The judge pointed out that the defendant “is neither in law nor in fact able to compel anybody to deal with the documents otherwise than in accordance with the protective order of the United States court”. He added, “That, it seems to me, is the beginning and the end of it.”
Even if the court had jurisdiction, the judge said that, as a matter of discretion, he would not have made an order which had the effect of varying a US order possibly to the prejudice of the third party whose confidential information it was and who had had no real opportunity to address the court.