Background
Nebahat Evyap İşbilen brought related proceedings against her former adviser, Selman Turk, and Hanson Asset Management Limited. She alleges that Turk misused approximately US$90 million entrusted to him and that Hanson breached its mandate, and dishonestly assisted Turk, when approximately €28 million was transferred from her Hanson account to the Cayman Islands-based Sentinel Fund. Her case includes allegations that her money was used in transactions benefiting companies and associates connected with Hanson’s new corporate group.
İşbilen sought third-party disclosure from Bulgarian companies EuroHold Bulgaria AD and Euro-Finance AD. Emails from accounts used by four individuals who had served as Hanson directors had been collected from the Bulgarian companies’ servers and transferred to Interpath’s servers in England. After excluding two broad search terms, İşbilen sought up to 1,569 potentially responsive documents identified by targeted keywords. The respondents, supported by Turk and Hanson, opposed the application on grounds including relevance, necessity, confidentiality, burden, delay, and possible disruption to the imminent 11-week trial.
The Court’s Holding
Mr Justice Adam Johnson allowed the application under CPR 31.17 and section 34 of the Senior Courts Act 1981. Applying the Court of Appeal’s interpretation of “likely” as meaning “may well,” the Court held that every keyword-defined class satisfied the statutory threshold. Documents referring to Turk and his associate’s corporate vehicles, İşbilen and her advisers, or alleged dealings with her assets might shed light on the asserted relationship between Turk, Hanson, and the Bulgarian companies. It did not matter that some documents might ultimately prove irrelevant or support the defendants instead.
The Court also found disclosure necessary for the fair disposal of the claims. The alleged fraud was extensive, the existing documentary record was fragmentary, and there was an informational imbalance between İşbilen and those alleged to have handled her assets. Fair adjudication required the best documentary record reasonably achievable, particularly because individuals connected with the Bulgarian companies were expected to give evidence at trial.
The Court exercised its discretion despite the application’s lateness and the respondents’ confidentiality concerns. Because the documents were physically held in England, ordering their production did not infringe another state’s sovereignty. The respondents were not required to conduct a party-style relevance review, although they could assert rights or duties to withhold inspection and make appropriate redactions. Costs protection, production in tranches, and judicial control over the use of new documents or proposed pleading amendments could limit the burden and disruption.
Key Takeaways
- For third-party disclosure under CPR 31.17, “likely to support” means that the documents “may well” assist the applicant; it does not require proof on the balance of probabilities.
- A keyword-defined class may satisfy CPR 31.17 even if some responsive documents ultimately prove irrelevant or support another party’s case.
- Documents physically located in England may be ordered disclosed even when owned by overseas entities, subject to legitimate claims to withhold inspection or redact protected material.
- Delay, confidentiality obligations, and trial-management concerns inform the court’s discretion but do not necessarily outweigh the need for a fuller documentary record.
Why It Matters
The decision clarifies the distinction between a litigating party’s issue-based relevance review and the predictive test governing disclosure by a non-party. Once a properly defined class meets CPR 31.17’s “may well” threshold, an overseas respondent cannot insist on applying the more detailed relevance standards applicable to parties before producing documents situated in England.
The ruling also illustrates the jurisdictional importance of where electronic documents are held. Moving an overseas company’s data to an English service provider may expose that data to the High Court’s third-party disclosure powers, even when the owner remains abroad and is subject to foreign confidentiality or regulatory obligations.