Disclosure applications and privacy rights in commercial litigation

The Commercial Court has clarified the stringent requirements for varying disclosure review documents (DRDs) under CPR Practice Direction 57AD, even where privacy and confidentiality concerns are raised. The decision emphasises that parties seeking to narrow previously agreed disclosure bear a significant burden of justification.

Background

The dispute concerned shares in AICO, a Saudi Arabian company founded by the parties' late father. The claimant, Rana Al-Aggad, left Saudi Arabia in 2005 and was subsequently granted refugee status in Canada. Her claim alleged that her siblings colluded to register her shareholding through Saudi proceedings whilst knowing her personal circumstances prevented participation, thereby depriving her of the opportunity to realise value from her shares.

At a case management conference in December 2024, the parties agreed a DRD that included disclosure concerning the claimant's immigration and citizenship documentation. Shortly before disclosure was due, the claimant applied to withhold these documents, arguing they were insufficiently relevant whilst also being confidential and sensitive.

The legal framework

Paul Stanley KC, sitting as a Deputy High Court Judge, examined the interaction between paragraphs 14 and 18 of PD 57AD. Paragraph 14 permits withholding documents on grounds of privilege or confidentiality, whilst paragraph 18 governs applications to vary disclosure orders.

The judgement establishes that where a party seeks systematic reformulation of a disclosure issue on relevance grounds, the application is properly considered under paragraph 18. The party must demonstrate that variation is "necessary for the just disposal of the proceedings" and is "reasonable and proportionate". Importantly, this burden exists notwithstanding any agreement to the original DRD or absence of changed circumstances.

The court rejected arguments that documents could be unilaterally withheld on grounds they were insufficiently "key" to the case. Once a DRD is approved, documents falling within its scope that advance or undermine pleaded cases must be disclosed. If parties consider pleaded allegations irrelevant, the proper remedy is to strike them out, not to refuse disclosure.

Balancing privacy rights

The claimant relied on Article 8 ECHR, arguing that disclosure would interfere with privacy rights. The court applied the framework from Durham County Council v D [2012] EWCA Civ 1654, which requires balancing fair trial rights against privacy interests where the relevance test is satisfied.

Whilst acknowledging that subjective privacy concerns may engage Article 8, the court found that immigration documentation does not inherently raise weighty privacy interests, particularly where aspects of the claimant's circumstances were already in issue. The evidence did not establish objective justification for the claimant's subjective fears about potential harm from disclosure.

The court determined that the documents were directly relevant to pleaded allegations, even if their ultimate significance to the case outcome remained uncertain. The defendants had expressly pleaded matters that the disputed documents would prove or disprove. Although the evidential pathway from these facts to liability was unclear, the allegations remained on the pleadings and had not been struck out.

The application to vary the DRD was therefore refused. The court also declined to limit inspection to physical viewing only, finding this would unnecessarily impede the defendants' ability to take instructions. Instead, protective measures were imposed: defendants' solicitors must provide seven working days' notice before defendants inspect documents at the solicitors' offices, without hard or soft copies being provided to the defendants themselves.

The decision underscores that agreed DRDs carry significant weight and cannot be revisited without substantial justification, even where privacy concerns exist.

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