In the case of North Shore Ventures Limited v Anstead Holdings Inc and others , the Court of Appeal recently considered what it meant for a document to be in a party's control for the purpose of the CPR.
Under CPR 71, a court may order a judgment debtor to attend court to provide information about his means and to produce such documents in his control as are specified in the order.
In the present case, the judgment debtors and appellants, Mr Fomichev and Mr Peganov, had transferred assets to discretionary family trusts of which they were beneficiaries. On the application of the respondent, the court had ordered them to produce documents relating to such trusts including the trust deeds, any letters of wishes and any documents identifying the settled assets.
Mr Fomichev and Mr Peganov appealed on the basis, inter alia, that such documents were not in their control and that the judge had no jurisdiction to make such an order.
CPR 71 does not define 'control'. However, CPR 31, which deals generally with disclosure of documents, provides the following guidance at CPR 31.8(2):
'(2) For [the purpose of CPR 31.8(1)]a party has or has had a document in his control if –
(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it.'
In the present case, the Court of Appeal saw no bar to applying the same criteria when determining what documents are in a party's control for the purpose of CPR 71. Lord Justice Toulson gave the following guidance on the construction of the CPR and what constitutes control:
'In determining whether documents in the physical possession of a third party are in a litigant's control for the purposes of CPR 31.8, the court must have regard to the true nature of the relationship between the third party and the litigant. The concept of 'right to possession' in CPR 31.8(2)(b) covers a situation where a third party is in possession of documents as agent for a litigant. The same would apply in my view if the true nature of the relationship was that the litigant was to be the puppet master in the handling of money entrusted to him for the specific purpose of defeating the claim of a creditor. The situation would be akin to agency. But even if there were on a strict legal view no 'right to possession', for example, because the parties to the arrangement caused the documents to be held in a jurisdiction whose laws would preclude the physical possessor from handing them over to the party at whose behest he was truly acting, it would be open to the English court in such circumstances to find that as a matter of fact the documents were nevertheless within the control of that party within the meaning of CPR 31.8(1). CPR 31.8(2) states that for the purpose of CPR 31.8(1) a party has or has had a document in his control if the case falls within paras (a) to (c). It does not state that a party has or has had a document in his control if but only if the case falls within one of those paragraphs.'
In the present case, it was held that the court had jurisdiction to make the order which was under appeal and the appeal was dismissed.
It is expected that Toulson LJ's guidance will apply far beyond the factual issues in North Shore Venture Limited. Possibly of widest relevance to legal practitioners is the inference that CPR 31.8(2) does not define 'control'. It provides a list of circumstances in which control is deemed, but does not preclude the courts from finding that control is present in other cases. At least on a strictly literal reading of the CPR, this must be correct.
In many cases where documents are in the physical possession of a non-party and the criteria at CPR 31.8(2) do not apply, legal representatives will be required to give proper consideration to the true nature of the relationship between their client and that non-party when advising on disclosure duties.