In a recent decision, the High Court has held that the documents of a claimant’s creditor were not in the claimant’s control for the purposes of disclosure. Although two employees of the creditor acted as the claimant’s agent in conducting the litigation, that did not mean that all the documents to which they had access in their capacity as the creditor’s employees were in the claimant’s control: Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd  EWHC 548 (Comm).
The question of when a third party’s documents are in a litigant’s control (and therefore subject to its disclosure obligations) is a common issue considered by in-house lawyers at financial services firms. In recent authorities, the courts have taken a relatively broad view, finding that there is no need for an enforceable legal right to obtain the documents; it is sufficient that there is a continuing arrangement or understanding that in practice provides the litigant with a right of access.
However, there are limits. The present decision shows the court’s approach where it is argued that a principal has control over documents on the basis that its agent can access those documents. The question comes down to the scope of the agency. While a litigating party will have control over the documents of its agents, acting in that capacity, it will not have control over documents which the agents can access in a separate capacity (here, as employees of a creditor).
For more information on the decision, please see our Litigation Notes blog.