In Berkeley Square Holdings Ltd & Ors v Lancer Property Asset Management Ltd & Ors [2021] EWHC 849 (Ch) Mr Robin Vos (sitting as a judge of the Chancery Division)  held that a sworn statement as to disclosure is not conclusive and did not prevent an order for specific disclosure.



The judge was asked to determine whether the claimants could be ordered to give further disclosure after a disclosure statement had been signed. One of the arguments the claimants’ used was that a sworn statement that they did not have control of documents was conclusive.  This argument was not accepted by the judge, who observed that there was in fact no sworn statement on this issue in any event.


Is a sworn statement in relation to disclosure conclusive?
    1. The claimants submit that a sworn statement that they do not have control over documents is conclusive. This submission is based on the decision of the Court of Appeal in Al-Fayed v. Lonrho Plc (No.3) (the Times 24th June 1993). The Al-Fayed brothers had sworn affidavits relating to disclosure. The claimants believed the affidavits to be untrue and obtained an order that they should be cross-examined on those affidavits. The purpose of the cross-examination was to obtain an order under what was then Order 24 Rule 16 of the Rules of the Supreme Court to strike out the Al-Fayed brothers’ defence should it be established that the Al-Fayed brothers had not disclosed all of the documents which they should have disclosed. It is important to note that the affidavit being challenged was not the affidavit supporting the results of the first disclosure exercise but was an affidavit supporting a second disclosure following an application for specific disclosure under what was then Order 24 Rule 7.
    1. Having reviewed numerous authorities, Stuart-Smith LJ concluded that:
“those authorities lead me to the conclusion that on whatever ground the order for a further affidavit is made, whether because of some admission by the deponent or the belief of the opposite party that other documents exist, the oath of the deponent in answer is conclusive; it cannot be contravened by a further contentious affidavit and cannot be the subject of cross-examination.”
    1. Stuart-Smith LJ explained that the reason for this rule is that:
“in the great majority of cases where it is alleged that one party or the other has suppressed documents, this issue will be crucially relevant to the issues in the trial and can only properly be determined after the judge at trial has heard all the evidence. To try the issue at an interlocutory stage could involve injustice to both sides.”
    1. The Court of Appeal however made it clear that this rule did not preclude an application for specific disclosure saying:
“with regards to those affidavits of documents – if there is reasonable suspicion a further affidavit will be required. That case makes it plain that there was a procedure, even before the procedure of Order 24 Rule 7 was introduced in 1893 for obtaining a further affidavit of documents; but the oath of the deponent on the further affidavit was conclusive.”
    1. It is therefore clear from Al-Fayed v. Lonrho that a sworn statement does not prevent the court from making a further order for specific disclosure in circumstances where it is satisfied that the initial disclosure is inadequate.
    1. Mr Marshall also referred in his skeleton argument to the decision of Waksman J in Lakatamia Shipping Co Limited v. Nobu SU [2021] EWHC 203 (Comm). In that case, one of the defendants had provided sworn statements that she did not have any relevant custodians. Waksman J commented [at 53] as follows:
“I take the point which Mr Phillips QC accepts which is that you must not on an interlocutory hearing make a concluded finding about whether someone has possession or control of a document, particularly if that same issue is going to arise in the substantive trial because otherwise you are pre-judging it. It is not quite the same here but once a party has said on the underlying facts that they do not have control in the required sense, it is very difficult to see what more the court can do about it.”
    1. This was not however a reserved judgment and it is not apparent what authorities were drawn to the judges’ attention. In addition, the facts were very different given that the defendant maintained throughout that she had no custodians and so had provided only very limited disclosure whereas, in the present case, the claimants have provided significant disclosure of documents held by those persons whose documents they now say are not under their control. I do not therefore read Lakatamia as authority for the general proposition that I cannot make an order to remedy any perceived inadequacy in the first round of disclosure based simply on what is said in a sworn statement.
    1. In any event, as Mr Beltrami points out, there is no sworn statement which makes it clear that, other than the documents held by the President himself (and possibly any documents held by the PDP), the documents in question are not within the control of the claimants. The disclosure certificate says nothing at all about control. The witness statement provided by a representative of the claimants’ solicitors in response to the disclosure application, whilst asserting that documents held by Sheikh Khalifa and the PDP are not under the control of the claimants, at the same time refers more than once to documents which are under the control of the claimants. By way of example, the witness statement mentions that:
“to the extent that individuals have potentially relevant documents within the claimants’ control, they were held on servers outwith the claimants’ control (specifically, the servers of PDP and Circle)”
    1. Other than in relation to the President himself, I do not therefore find that there is any conclusive sworn statement that potentially relevant documents held by the other individuals listed as custodians are not within the control of the claimants.
  1. As I have already concluded, even if there were such a sworn statement, this would not prevent the court from making an order under paragraph 17 of PD51U if it considers that the disclosure which has already been provided is inadequate. In this context, I note that, although paragraph 18 of PD51U deals with varying an order for extended disclosure and for making an additional order for disclosure of specific documents, the provisions of CPR Rule 31.12 dealing with specific disclosure are intended to apply to situations where the initial disclosure is believed to be inadequate (see paragraph 5.1 of practice direction 31A). An order under paragraph 17 of PD 51U therefore falls within the same category as an order for specific disclosure which was expressly stated in Al-Fayed v. Lonrho to be an exception to the general rule that a sworn statement in relation to disclosure is conclusive.