High Court partially overturns order for defendant to provide disclosure in jurisdiction dispute

The High Court has partly overturned a Master's orders for a defendant bank to disclose certain documents in the context of a jurisdiction dispute: Alesayi v Bank Audi SAL [2025] EWHC 440 (KB).

The decision illustrates the court's approach to determining when and to what extent a defendant may be ordered to provide disclosure in the context of a jurisdiction challenge. The judge confirmed that the correct legal test for disclosure in this context is the two-stage test set out in Rome v Punjab National Bank [1989] 2 All ER 136. This requires: (i) a prima facie case on jurisdiction; and (ii) that the material sought is reasonably necessary for the just disposal of the jurisdiction application. There is no separate requirement of "exceptional circumstances", as the defendant had argued – though an order for disclosure is out of the norm in this context, and in that sense exceptional.

The decision suggests that an order for disclosure may be more likely where there is significant information asymmetry between the parties. However, it emphasises that the desire for evidential equality should not overshadow the need for proportionality in disclosure. Overall, the decision suggests that a claimant must be prepared to provide clear evidence to demonstrate the relevance of requested documents in relation to the issues the court will need to decide on the jurisdiction application.

The decision is also of interest for the judge's comments on when a document has been "mentioned" in a witness statement or statement of case so that disclosure can be ordered on that basis. In particular, the judge disagreed with the Master's conclusion that broad references to a witness having checked a bank's records amounted to a "mention" of the underlying client files.

As noted in our blog post on the Master's decision (here), while this case addresses disclosure under CPR 31, given that the claim was issued in the King's Bench Division, it is likely that the same approach would be applied to an application for disclosure under Practice Direction 57AD, which is relevant to cases in the Business and Property Courts.

Background

As is more fully set out in our previous blog post, the claimant applied for disclosure of certain categories of documents in support of his position that the court had jurisdiction over his claim against the defendant Lebanese bank under s.15B of the Civil Jurisdiction and Judgments Act 1982. That provision allows a consumer domiciled in the UK to bring a claim in the English court against a business that pursues commercial activities in the UK or directs such activities to the UK.

In support of the disclosure application, the claimant relied on CPR 31.12 (which allows the court to order specific disclosure or inspection of documents) and/or CPR 31.14 (which allows a party to inspect a document mentioned in a witness statement, among other documents). He said he could not provide a full pleading on the jurisdiction point until the defendant provided disclosure of various documents, particularly relating to the question of whether the defendant directed its activities to the UK.

The High Court (Master McCloud) allowed the disclosure application in part, ordering the defendant to give disclosure in respect of certain customer records, customer-facing materials and standard terms and conditions. The defendant appealed.

Decision

The High Court judge (Dias J) overturned the Master's orders in part.

Correct legal test for disclosure in jurisdiction challenges

The starting point for the appeal was to determine the correct legal test for specific disclosure under CPR 31.12 in the context of a jurisdiction challenge.

The defendant argued that the Master was wrong to apply the two-stage test set out in Rome, which requires: (i) a prima facie (if partially evidenced) case on jurisdiction; and (ii) that the material sought is reasonably necessary for the just disposal of the jurisdiction application. The defendant submitted that the central test in jurisdiction cases is instead "exceptional circumstances", as stated by the Supreme Court in Lungowe v Vedanta Resources Plc [2020] AC 1045 and applied in Merrill Lynch v Citta Metropolitano di Milano [2023] EWHC 1015 (Comm). On the defendant's case there were no exceptional circumstances justifying disclosure, and the Master's judgment had not even purported to identify any, and so disclosure should be refused.

Dias J rejected the defendant's argument that the test was "exceptional circumstances". The two-stage test in Rome had been consistently applied or approved. There was no authority where a pure exceptionality test had been applied to order or refuse disclosure in a jurisdiction challenge over and above the two-stage test in Rome. Vedanta did not involve an application for disclosure in a jurisdiction challenge. Lord Briggs's comment that limited disclosure may be ordered in "exceptional circumstances" was not a determination that the test was one of exceptionality – it was a comment on the nature of the factual circumstances in which the two-stage test in Rome is likely to be met. The same was true of Merrill Lynch.

Accordingly, the Master had applied the correct legal test under CPR 31.12. However, Dias J went on to consider the Master's disclosure decisions under both CPR 31.14 and CPR 31.12.

Whether "mentioned" for the purposes of CPR 31.14

Dias J noted that "mentioned" is not intended to be a difficult test, and that (as per National Crime Agency v Abacha [2015] EWHC 357 (Admin)), a party who refers to the documents does so by choice, usually because they are either an essential part of his cause of action or defence or of significant probative value to him. He also agreed that the focus should be on whether objectively the documents were mentioned, irrespective of the witness's subjective intentions.

The Master had ordered disclosure of the defendant's records in relation to certain UK-resident customers on the basis that these were mentioned by virtue of references in the witness evidence to having checked those customer records.

Dias J observed that the witness had expressly mentioned "statistics" not the customer files themselves, and the "data available" as opposed to the customers' personal records. He provided data following a "readout" from the defendant's "systems" and another bank's records. He did not say that he personally went through the customer files or records himself. All he did was collate and tabulate the "readout" from the defendant's systems. For CPR 31.14 purposes, Dias J held that he had not directly or indirectly "mentioned" the customer files.

However, Dias J agreed with the Master that the defendant's customer facing marketing materials referring to the UK had been "mentioned" in two witness statements, where the statements explained the languages in which those materials had been prepared. While the Master could have refused disclosure on discretionary grounds, there was no basis to interfere with her decision not to do so.

Dias J also held that the Master was correct to refuse to order disclosure of the defendant's standard terms and conditions for customer accounts under CPR 31.14, as the witness's mention of those documents was merely a reference to a citation by the claimant's solicitors.

Whether disclosure "reasonably necessary" under CPR 31.12

Dias J also overturned a number of the Master's orders for disclosure under CPR 31.12. For example, he disagreed with the Master's decision that it was reasonably necessary to order disclosure of customer files under CPR 31.12. The Master had failed to explain how anything in the records was relevant to the question of whether the defendant had directed activities to the UK.

Dias J also held that the Master had erred in ordering disclosure of the defendant's terms and conditions under CPR 31.12, as the reasonable necessity test had not been properly applied. There was a need for an evidential foundation beyond mere conjecture to infer that the disclosure was relevant to the directed activities issue.

Overall, Dias J emphasised that where appeals against certain orders had been allowed, this was generally due to the Master losing sight of the reasonable necessity test by placing undue emphasis on seeking to ensure a "level playing field" and address "information asymmetry". Dias J agreed that information asymmetry was a relevant factor in considering the appropriate disclosure order, but commented that "the quest for a perfectly mirroring evidential equality should not obscure the need for proper restraint, parsimony and proportionality in disclosure".

The next stage in the action was a jurisdiction challenge hearing, not a "mini-trial". The Master had failed at times to give sufficient weight to the confined nature of the issue that had to be decided, which was unlikely to be complex. The judge noted that the aim of putting the parties on an equal footing, as reflected in the overriding objective, was qualified by the words "as far as practicable", and the court also had to bear in mind the need to deal with the matter at proportionate cost and in light of the complexity of the issues (or lack thereof).

The combined costs of the disclosure proceedings ancillary to the jurisdiction challenge already approached £750,000, and the judge had taken the apparently unprecedented steps of ordering a disclosure statement and considering costs budgets in this context. All of this showed that something had gone wrong. The judge was, however, satisfied that the disclosure orders, as refined, would permit the court to determine the jurisdiction question in proportionately and justly.