A recent High Court case highlighted the importance of disclosure obligations under PD 57AD and the scope of a parties’ ‘control’ over documents held by a sub-contractor.
When giving disclosure under PD 57AD, a party must state whether a document that was or in its control and has been identified. It then must either produce a copy of the document, and if not, explain why not. The case Mornington 2000 LLP (t/a Sterilab Services) and another v The Secretary of State for Health and Social Care [2024] EWHC 1708 (TCC) (the Judgment of which can be found here) concerned the supply of Covid-19 lateral flow test kits. The Defendant made an application for a declaration that documents held in the possession of third parties could be regarded as within the control of the Claimants for the purposes of their disclosure obligations. It concerned documents that were responsive to categories in the Disclosure Review Document.
The Court in considering the principles of control under the case of Berkeley Square Holdings Limited v Lancer Property Asset Management Limited [2021] EWHC 849 (Ch), found that the relationship between the Claimant and the sub-contracting parties had gone beyond what was considered a “standard, arm’s length” relationship and in substance was a joint venture. It found that there were clauses within contracts which allowed for searches of documents. Most importantly, the Claimant had historically accessed documents from the sub-contractor and there was no evidence to suggest this arrangement would cease. As such, the High Court granted the declaration sought by the Defendant.
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