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The High Court has held that documents in the possession of third parties engaged by a group of claimants to assist in litigation were within the control of the claimants and must therefore be searched for the purposes of disclosure: Baroness Lawrence of Clarendon v Associated Newspapers Ltd [2025] EWHC 2930 (KB).
While the facts of this case are somewhat unusual as regards the role of the third parties involved, the decision illustrates the kind of difficult issues in relation to control that are regularly encountered in complex litigation, where there may be a number of third parties in possession of potentially relevant documents. It adds to a growing line of authorities establishing that a party has control over a third party's documents for disclosure purposes not only where there is a legally enforceable right of access, but also where there is an arrangement or understanding which means that the documents are within the party's practical control as a matter of factual reality.
In this case it was accepted that documents produced by the third parties after they were engaged by the claimants were in the claimants' control, on the well-established principles relating to documents of agents. However, the decision demonstrates that the fact that an agent might have acquired documents before the agency relationship began, and in another capacity, does not of itself preclude a finding of control over those documents at a later point in time. It all depends on the nature of the particular factual relationships.
Background
The decision arose in the course of proceedings brought by a number of claimants against Associated Newspapers. The claimants alleged that they had been the subject of unlawful information gathering, including in the form of interception of voicemail messages and obtaining of information by deception.
The claimants had engaged a group of individuals, known together as the Research Team, to assist in the litigation. The Research Team had specialist knowledge and experience of unlawful information gathering by newspapers, gained in part through their own investigations. In the course of these investigations, they had obtained evidence relevant to the claims at issue and provided at least some of that evidence to the claimants.
Documents held by the Research Team came broadly from four sources: previous investigative work for a campaign group relating to phone hacking; work carried out in support of the claimants in litigation against other defendants; freelance journalism; and work undertaken for the claimants in the current litigation.
The question arose as to whether these documents were within the claimants' control for the purposes of disclosure. The claimants sought to distinguish between:
- documents produced after the formal engagement of the Research Team by the claimants or voluntarily provided by members of what became the Research Team prior to their engagement, which they accepted were in the claimants' control; and
- other documents obtained, accessed or held by members of what became the Research Team before their engagement, which they argued were not within the claimants' control (except where they had been provided voluntarily).
The claimants argued that members of the Research Team had operated in multiple capacities (ie they had worn different "hats"), and the question of control depended on these roles. There was a distinction between their roles as independent researchers, for example, and as individuals acting under instruction of solicitors or as agents for the claimants. When acting independently, their documents might not be within the claimants' control. When acting as agents or under instruction, their documents might be under the claimants' control.
The defendant argued that the Research Team's documents were under the claimants' practical control as a matter of factual reality. Although the members of the Research Team might have originally obtained the documents wearing different hats, they now held them as members of the Research Team. The claimants had been briefed on, and been able to access, documents held by the Research Team, including documents obtained before their formal engagement. In reality, the claimants had had free access to these documents.
Decision
The High Court (Nicklin J) held that documents in the possession of members of the Research Team, including those obtained before their engagement by the claimants, were within the claimants' control. They must therefore be properly searched and (where relevant) disclosed.
CPR 31.8 provided that a party's duty to disclose documents was limited to documents which were or had been in their control. For these purposes, a party had a document in their possession or control if it was in their physical possession, or they had a right to possession or a right to inspect or take copies of it.
As explained in Various Airfinance Leasing Companies v Saudi Arabian Airlines Corpn [2021] EWHC 2904 (Comm) (considered here), a party had control over a document held by a third party if there was either: (a) an enforceable right to obtain access to the document; or (b) a practical arrangement or understanding where the third party allowed access. It was sufficient for disclosure purposes if documents were under the practical control of the party as a matter of factual reality. As a matter of the general law of agency, a principal also had access to documents in its agent's possession that related to activities carried out by the agent on behalf of the principal.
The element of practical control required evidence of the requisite degree of control, specifically access that was essentially unfettered – see Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 548 (Comm), considered here. Such a right could be predicated on an agency relationship, but it also encompassed any arrangement where the party with control could access the documents. Whether access had been permitted in the past was a key consideration. It was also important to consider the capacity in which third parties held the documents, which might depend on the different "hats" the third parties wore. However the wearing of different hats did not of itself preclude a finding of the necessary degree of control. It depended on the particular factual relationship.
In determining the question of control, the court's role was to assess the nature of the relationship between the third party and the disclosing party. In this case, a number of features of the relationship between members of the Research Team and the claimants were important:
- The members of the Research Team were specialists in the matters at issue, having been involved in litigation concerning unlawful information gathering for many years.
- The Research Team had been formally engaged by the claimants for their particular experience. From that point on, they had acted as the claimants' agents, providing assistance in the litigation in return for payment.
- Prior to their engagement, the members of the Research Team had worked closely with the claimants' solicitors for a number of years, investigating whether proceedings for unlawful information gathering could be brought against the defendant and gathering evidence accordingly.
- Two members of the Research Team had been directly involved in incidents involving two of the claimants which had a direct bearing on the question of when those claimants knew or should have known whether they had a viable claim against the defendant. They were therefore highly likely to have documents relevant to possible limitation defences.
- The Research Team had given the claimants access to documents relating to the defendant before entering into the engagement agreement. After entering into the agreement, it could be inferred that restrictions on access were likely to be inconsistent with that agreement, if not a direct breach of its terms.
- The primary purpose of the engagement agreement was for the Research Team to assist the claimants in the proceedings at issue, including giving them unfettered access to documents. It could be inferred that the documents held by the Research Team were fundamental to their engagement.
The court was unable to resolve the question of whether the claimants had an enforceable right of access under the engagement agreement because the agreement had not been disclosed. There was a disputed claim to privilege over the agreement, which the court did not consider it necessary to resolve. However, it was satisfied that the agreement reflected a cooperative working relationship between the Research Team and the claimants, based on an arrangement or understanding that unfettered access to relevant documents would be provided (albeit potentially subject to restrictions arising in the context of other litigation or in respect of journalistic sources).
This was therefore not a case like Loreley where the third party held documents in a capacity that was totally separate from its role as agent for the party against whom disclosure was sought. There was no reason to think that any member of the Research Team presently held documents in a capacity which meant they were not in the claimants' control. The status of each member of the Research Team when he originally took possession of the documents did not govern whether they were now in the practical control of the claimants, although the circumstances in which a member of the Research Team came to hold particular documents might be relevant to whether inspection could be withheld.
The court, however, declined the defendant's application for an unless order requiring disclosure of the Research Team's documents. The claimants had not intentionally defied a court order on disclosure. Rather they had raised an issue regarding control and erred in their assessment of the correct position. There was no reason to believe that the claimants would not now properly comply.
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