Both CPR 31 and Practice Direction 51U (the Disclosure Pilot) entitle a party to see a document that has been “mentioned” in a witness statement. There has been much debate in case law and commentary as to what “mention” means so as to give rise to this entitlement. In Mobile Telecommunications Company KSC v HRH Prince Hussam Bin Saud Bin Abdulaziz Al Saud  EWHC 2968 (Comm), the High Court was asked again to grapple with the issue.
The court’s decision highlights three important points:
1. Even where the test is met (i.e. there is citation of or direct allusion to a specific document), the court will only order disclosure if it is satisfied that such an order is reasonable and proportionate. As such, if the document has no relevance to the issues before the court, an order is unlikely to be forthcoming.
2. It is possible, particularly in the context of interim applications, to be drawn into addressing matters not of direct relevance to the matter in hand, for example, in responding to a point raised by the opponent, as in Mobile Telecommunications. Making reference to a document in this context, however tacit, may very well invite a request for disclosure and the time and cost involved in resisting this.
3. One way to address such a situation would be to seek to amend the witness statement, as the claimant did here, so as to delete reference to the document and thereby eliminate the court’s jurisdiction to order disclosure. Again, though, this will involve time and expense which may be avoided if careful regard is had to referencing documents in the original statement.
The claimant was seeking to enforce an arbitral award against the defendant in Saudi Arabia. The award referred to the claimant being entitled to certain sums. The Saudi courts took the view that the award did not sufficiently order that the first defendant should pay those certain sums.
The claimant applied to the arbitral tribunal to have the award corrected but the tribunal said that it was functus. The claimant made a successful ex parte application to the High Court for an extension of the time for applying to the arbitration tribunal for the correction of the award. The tribunal then issued its fourth and fifth memoranda, by which it corrected the award.
The defendant applied to set aside the order extending time. In the course of that application, the defendant’s solicitor filed a witness statement which contained the statement “I do not know whether or not the fourth and fifth memoranda […] have yet been filed with the Saudi Court or otherwise drawn to the attention of the Saudi Court”.
In her witness statement in response the claimant’s solicitor stated: “While this, again, is not relevant to the present application […] the Fourth Memorandum was filed with the Saudi Court together with MTC’s appeal against the decision of the Riyadh Enforcement Court to refuse enforcement, on 8 September 2019”.
The defendant applied for an order that the claimant disclose the documents comprised in the claimant’s appeal to the Saudi Court. The claimant’s solicitor in turn sought to file an amended witness statement in which all reference to the appeal to the Saudi Court had been deleted.
The defendant made its application under paragraph 21 of the Disclosure Pilot. This paragraph effectively carries over the right to inspection set out in CPR 31.14 but sets it out in more detail. In summary:
· A party may request a copy of a document mentioned in a witness statement, statement of case, witness summary, affidavit or expert’s report.
· A request may be refused where it is unreasonable or a right to withhold production (such as on the grounds of privilege) is claimed.
· A document is mentioned where it is referred to, cited in whole or in part or there is a direct allusion to it.
· The court may make an order for production if it is satisfied such an order is reasonable and proportionate.
The court held that the words ‘filed with the Saudi Court together with MTC’s appeal against the decision of the Riyadh Enforcement Court’ did not include a reference or direct allusion to any document, but were merely descriptive of the process of appeal to the Saudi Court. In any event, it would not have ordered disclosure as it was not reasonable or proportionate to do so when the documents of which disclosure was sought were of no relevance to the issue before the court.
The court also granted the claimant permission to amend the witness statement on the basis that the reference to the appeal was inadvertent and there no intention on the part of the claimant to rely on the appeal or any documents comprised within the appeal.