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Abstract - consulation on AI

The right to inspect documents "mentioned" in evidence - the latest caselaw

Posted on 13 June 2023

Disclosure of documents that have been "mentioned" in evidence should be a straightforward matter. Both CPR 31 and the newer regime now set out in Practice Direction 57AD, contain express provisions in relation to the right to inspect documents referred to in this manner.

However, there is nevertheless a growing body of caselaw addressing the extent of this right. The recent judgement in Merrill Lynch v Citta Metropolitano di Milano [2023] EWHC 1015 (Comm) is the latest one to consider its application. It gives useful guidance on what constitutes a document that has been referred to in evidence and the Court's residual right to order disclosure of documents that are identified as a result of, but are not directly referred to in, such documents.


The Claimant, Merrill Lynch, is bringing claims in relation to ISDA swap agreements entered into by the Defendant Italian authority, Milano, in November 2002 (the "2002 Swaps"). The Claimant was not a party to the 2002 Swaps but acted in an advisory capacity in relation to them and is seeking a declaration of non-liability in relation to them.

The 2002 Swaps included exclusive jurisdiction clauses in favour of the English courts. However, the Defendant argues that the dispute arose out of a separate mandate which both parties had entered into with an Italian bank in 2001 (the "2001 Mandate"). Unlike the 2002 Swaps, the 2001 Mandate provided for Italian governing law and Milan court jurisdiction. Accordingly, the Defendant has commenced separate proceedings under the 2001 Mandate in Italy and is seeking to challenge the English Court's jurisdiction to hear the dispute under Part 11 of the Civil Procedure Rules (the "Part 11 Application").

The disclosure application

In March 2023, the Defendant applied for production of a specific document which they believed to be within the control of the Claimant for the purposes of its Part 11 Application (the "Disclosure Application"). Specifically, they sought disclosure of an unexecuted draft of a mandate document that had been entered into by the parties around the time of the swap transaction (the "Document").

The Defendant argued that it was entitled to disclosure of the Document either: (i) under Paragraph 21 of Practice Direction 57AD on the basis that it had been referred to in the Claimant's evidence in response to the Part 11 Application; or (ii) under the Court's general case management powers under CPR 3.1.

The Judge rejected the Disclosure Application under Paragraph 21 of PD57AD. However, he decided to exercise the Court's residual power under CPR 3.1(2)(m) to order specific disclosure of the Document, citing the "exceptional circumstances", which made disclosure in the interests of justice for the determination of the applicant Defendant's Part 11 Application.

The reasoning

The reference to a document in evidence, which formed the basis of the Paragraph 21 PD 57AD part of the Defendant's Disclosure Application, was made in a witness statement. In this statement, the witness had referred to "an executed copy" of the Document (the Executed Version). However, neither party now had a copy of the Executed Version. While no reference was made to the Document itself, its existence was revealed during subsequent correspondence between the parties. The Disclosure Application was therefore framed and pursued on two distinct and alternative grounds:

  1. The Document should be produced pursuant to Paragraph 21 of PD57AD because the unexecuted document was a "copy" of the Executed Version that had been mentioned in the witness statement. The Defendant argued that the Document could be inferred to contain "identical content", as defined in Paragraph 1.1 of Appendix 1 to PD57AD, to the Executed Version. Further, production was both reasonable and proportionate in accordance with Paragraph 21.4 of PD57AD; or, alternatively,
  2. The Court should exercise its residual power under CPR 3.1(2)(m) to order production of the unexecuted document because it would be in the interests of justice for the determination of the Part 11 Application. It was argued that disclosure would be necessary for the fair disposal of the jurisdiction challenge, given the potential relevance of the Document to the issues before the Court.

In relation to Paragraph 21 of PD 57AD, the Judge noted that inference had no role to play in this case, as there was express reference to the Executed Version in the witness statement. However, the Document could not be considered a "copy" of the Executed Version, and therefore disclosure could not be ordered under Paragraph 21 of PD 57AD. In reaching this conclusion, the Judge referred to the definition of "copy" in Appendix 1 to PD57AD, which states that a copy is "a facsimile of a document either in the same format as the document being copied or in a similar format that is readable by the recipient and in all cases having identical content" (emphasis added). As such, a copy cannot pre-date or pre-exist the document of which it is said to be a copy. Nor can it be held to have "identical content" if, for instance, one version lacks a signature or execution date which the other contains. On this basis, the Judge rejected the first and primary ground for production of the unexecuted document.

However, the applicant succeeded on the second ground. The Judge noted that it is, and should be, an unusual thing for the Court to order specific disclosure in the context of a jurisdiction challenge. Such applications are not designed to be decided with reference to an exhaustive factual investigation. That said, the Judge accepted the Defendant's argument that there were "exceptional circumstances" in this case. In particular, the application concerned factual events dating from 2001-2002, and as a result there was a significant lack of direct witness or contemporary documentary evidence. The Judge therefore considered that disclosure of the Document would help preserve the analytical integrity of any decision on the Part 11 Application and avoid the need for the judge hearing that application to have to speculate about the contents of a document which could have easily been produced. Thus, disclosure would facilitate the fair and expedient determination of the jurisdictional issue.

Key Takeaways

The Judge was clear that his conclusion should not create an "unwanted precedent", nor "cut across or sidestep the regime prescribed in PD57AD". The decision in relation the applicability of Paragraph 21 of PD 57AD also demonstrates the Court's inherent pre-disposition to uphold the integrity of PD57AD and discourage potential satellite disputes arising from proceedings, such as jurisdictional applications. Indeed, the Judge referred to the need to mitigate the risk of triggering putative responsibility to produce other documents said to be identical to documents referred to in evidence and thus wasting judicial time speculating about potential differences between unseen documents. However, that said, the judgment demonstrates that specific disclosure can, in exceptional circumstances such as these, be ordered even where the document is not "mentioned" in evidence in the formal sense and even if it proves to be "adverse" to the disclosing party.

Finally, in an interesting concluding remark, the Judge also noted that "if this proves to have been a tempesta in a teacup then Milano may find itself bearing some or all of the relevant costs… the judge who determines these costs may also wish to consider the degree of aggression exhibited in certain letters". This judgment therefore serves as a reminder that the courts remain steadfast in their dedication to ensuring that proceedings are properly pursued and that a litigant's interests do not override wider public interest obligations and duties to the court.

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