The High Court has declined to order a defendant to use its “best endeavours” to obtain the data held on the mobile telephones of two of its ex-employees, because it held that the data was not in the defendant’s control for the purpose of its disclosure obligations: Various Airfinance Leasing Companies v Saudi Arabian Airlines Corporation [2021] EWHC 2904.

This decision suggests that, just as the court cannot order a party to disclose documents that are not within its control, it can’t order that party to request such documents or use “best endeavours” to obtain them for disclosure. In those circumstances, an opponent seeking disclosure of such documents may wish to consider making an application for a third party disclosure order against the third party directly, though such orders are not always easy to obtain.

The court’s decision as to whether the documents were in the defendant’s control largely turned on expert evidence of Saudi law, which was the law governing the employment relationships in this case. It is worth noting, however, that (as the deputy judge acknowledged) the position would have been different if the relationships were governed by English law. Under English law, a principal is entitled to have access to documents held by its agent relating to the principal’s affairs: see for example Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886 considered here. Accordingly, in most cases where an employee has conducted its employer’s business using a personal mobile phone, the relevant documents are likely to be in the employer’s control even if the telephone itself is not.

Background

The underlying dispute relates to the amount payable by the defendant in respect of various aircraft leased from the claimants. It involves questions of interpretation of the lease agreements and estoppels allegedly based on statements or assumptions which were communicated between the parties.

In October 2021 the claimants applied for an order that the defendant disclose data held on the mobile phones of two individuals, Mr Al Jasser and Mr Altayeb, who were formerly senior employees of the defendant and were central to the negotiation and execution of the various agreements. The defendant’s Disclosure Review Document (DRD) named both as custodians and identified mobile phones as data sources.

The application was made on the basis that the data in question might include emails and instant messages relevant to the matters in issue in the case. It sought orders that: (i) the defendant use “best endeavours” to secure the production of the documents held on the mobile phones by both individuals; and/or (ii) both produce their devices to independent IT consultants to be searched for documents.

Decision

The High Court (Peter MacDonald Eggers QC sitting as a deputy High Court judge ) held that it did not have jurisdiction to make the orders sought, primarily because the documents were not within the defendant’s control.

In reaching that decision, the court addressed the following questions:

Are the documents held on the mobile telephones within the defendant’s control?

The court noted that where a document is, as here, in the physical possession of a third party, that document will fall within the “control” of a party to the proceedings both where the party has a legally enforceable right to obtain access, and where there is a standing or continuing practical arrangement between the party and the third party whereby the third party allows the party access to the document (even if the party has no legally enforceable right of access). However to establish this sort of practical arrangement, it is generally not enough just to demonstrate that there is a close relationship such as parent and subsidiary or employer and employee; the evidence must be “specific and compelling”.

Having heard expert evidence on Saudi law, which governed the employment relationships in this case, the court found that the defendant did not have control over the documents on the individuals’ telephones because:

  • there was nothing under Saudi law or in the individuals’ employment contracts which conferred on the defendant the right to take possession of, or to access or inspect, the documents on their telephones;
  • there was no presumption that, since the individuals had held senior positions with the defendant, they had fiduciary obligations which would confer on the defendant a right of access to the data in question (though the deputy judge said he would have been sympathetic to that submission if the employment contracts were governed by English law rather than Saudi law); and
  • the statements in the defendant’s DRD did not suffice as evidence that the documents fell within the defendant’s control because they included a qualification that, since the individuals were no longer employed by the defendant, that might affect the availability of their contemporaneous documents.

Does the court have the jurisdiction to make a “best endeavours” order?

The deputy judge held that the court had no general power to require a party to request a third party to produce a document where that document is not in the litigating party’s control.

The deputy judge was not aware of any authority allowing the court to require a party to exercise best endeavours to obtain or request a third party to provide documents for disclosure. He said such an order might well be made if the requisite “control” is established, such as in Phones 4U v EE Ltd [2021] EWCA Civ 116 (considered here) where the Court of Appeal held that it had power to order a party to request that its employees and ex-employees deliver up their personal devices for inspection by the other party’s IT consultants. As an alternative, the court has power to order a third party to provide disclosure of documents under CPR 31.17 (which is also applicable in cases under the Disclosure Pilot at PD 51U).

The judge noted that the court does have an express power under CPR 58.14 to require a party to exercise best endeavours to obtain documents from third parties even though the documents do not fall within a party’s control, but that applies only in proceedings relating to a marine insurance policy. The absence of any rule in the rest of the CPR permitting a similar order to be made in other circumstances indicates that there is no such wider power.

Should the court make an order for disclosure or a “best endeavours” order?

The deputy judge held that, even if he were wrong on the scope of the court’s jurisdiction, he would have exercised his discretion to refuse the application in any event: he was not convinced that the cost of and practical problems associated with the disclosure exercise would justify the disclosure of material which might be relevant to the issues in the action, especially where much of the material could be obtained from other sources.

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