Rana Al-Aggad v Talal Al-Aggad

At this case management conference, I have to consider some disclosure issues which the parties have called the “[redacted] documents application”. The claimant asks to be allowed not to disclose various documents, although they fall within the scope of a search that has previously been ordered, because they are insufficiently relevant to the case, but also confidential and sensitive. As a fall-back, the claimant asks for special limits to be placed on the manner in which the documents are disclosed.

The application traverses confidential matters, and evidence which is subject to confidentiality orders. For that reason, I heard it in private. I have found it necessary to refer to some of these matters in this judgment, of which only a redacted version (which will still be sufficiently intelligible to explain my reasons) can be released publicly. The unredacted judgment will be confidential on the terms of an order previously made, which will need to be amended accordingly.

For reasons explained below, I have ultimately decided that the DRD should not be varied, because the claimant has not satisfied me that it is “necessary for the just disposal” of this case that it should be. I have also decided that the claimant’s privacy and confidentiality rights in respect of the documents in question do not justify withholding disclosure, but that they do justify some additional protection for the documents that she discloses.

There are four parties to this case. They are siblings—the children of the late Mr Al-Aggad, who died in 2018, and Mrs Murad, who died in 2022. They are Ms Rana Al-Aggad (whom I shall call “Rana”), who is the claimant; Mr Talal and Mr Tarek Al-Aggad (who are the first and second defendants, and whom I shall call “the brothers”); and Ms Lama Al-Aggad (whom I shall call “Lama”).

I take my factual narrative largely from the statement of common ground and list of issues. Although I have tried to stick to what I think is common ground, there are sometimes points of detail that are in dispute. What I say is sufficient for the purposes of deciding the application that is before me, but nothing I say should be taken as intended to make any findings of fact, or as a comprehensive statement of the pleaded positions. I have sometimes described as “common ground” a point which is accepted by Rana and the brothers but not admitted by Lama.

The dispute revolves around shares in a company called AICO, which Mr Al-Aggad Sr founded in Saudi Arabia in 1975. Its shares were held either by him, Mrs Murad, and the children.

In 2005, Rana and her parents left Saudi Arabia, and moved to Canada. [Redacted text.] She says that her circumstances were such that she has not been able to return to Saudi Arabia.

Between 2007 and 2009 the family had discussions about how AICO’s shares should be held. The motivation and nature of those discussions is disputed. On 25 January 2009 an agreement was concluded involving AICO and another company, Mr Al-Aggad Sr, and his children. It provided for Rana to be paid some money, for some debts owed by companies in which she had an interest to be written off, and for payments to be made and some shares in the companies to be transferred to the defendants. That agreement gives rise to the first set of claims, which are about whether there is any payment due to Rana under it, and whether the brothers are liable for that. Those issues do not touch anything that I have to decide in this application.

When Mr Al-Aggad Sr died in 2018 he was living in Canada. He died owning a 24 percent shareholding in AICO. Rana became entitled to some of those shares.

This posed, she says, a problem. Under Saudi law, the mechanism by which a person becomes a shareholder in a company is by amendment of the company’s articles of association, and registration with the Ministry of Commerce. Rana says that she did not wish to go through that process, and that the defendants understood that because of her circumstances she could not. She would rather have sold the shares to the brothers or to a third party, but her brothers did not want to buy her out.

What then occurred, between September and October 2018, were legal proceedings in Saudi Arabia, known as the PSC proceedings. Rana and Mrs Murad were named as defendants but did not actively participate in them. The upshot of the proceedings was that the Saudi court ordered Mr Al Aggad’s shares to be distributed among the family, including Rana, and she was so registered in late 2018. AICO’s articles were amended. That judgment was challenged by Mrs Murad in two sets of proceedings in Saudi Arabia during 2019, but it was not set aside.

The core of Rana’s complaint in this respect is an allegation that the PSC proceedings were instituted by the brothers, colluding with each other and Lama, in the knowledge that because of her personal circumstances she would not be able to participate in them. She says that if the brothers had proceeded properly her consent would have been required to amend AICO’s articles, which would have given her an opportunity to obtain value from her entitlement to shares, either from the brothers or from a third party. The PSC proceedings were, she says, an illegitimate means of formally registering her shareholding, concealed from her, which given her actual circumstances meant that it was not possible for her to realise its full economic value. This, she says, was intended to harm her, and was tortious.

The disclosure review document (“DRD”) was settled by Ms Sue Prevezer KC, sitting as a Deputy High Court Judge, at a case management conference on 11 December 2024. Disclosure Issue [redacted text]:

That extended disclosure was to be given by Rana only, following Model D—narrow search based disclosure. That entails a “reasonable and proportionate search” for documents which “are likely to support or adversely affect its claim or defence or that of another party”. In the absence of any order, narrative documents were to be excluded, if possible: see PD 57AD 8.3.

The DRD identified the pleaded issues to which Disclosure Issue [redacted] related as: paragraphs 2, 6, 7 and 8 of the particulars of claim; paragraph 5 of the confidential annex to the particulars of claim; paragraphs 3, 5, and 6–8 of the brothers’ defence; paragraph 7 of the confidential annex to the brothers’ defence; and paragraphs 5-6 of Lama’s defence.

Paragraph 2 of the particulars of claim states:

“The Claimant is Ms Rana Al-Aggad (the ‘Claimant’). Until August 2005, the Claimant principally resided in Saudi Arabia. Since then, she has resided in, Canada. The Claimant and the Defendants are siblings.”

Paragraph 3 of the brothers’ defence admits that paragraph, except that it puts Rana to proof that she has resided in Canada since 2005 (though it puts forward no alternative positive case, and paragraph 2 of the agreed common ground records as common ground that Rana “left Saudi Arabia in 2005, following which [she] resided in Canada”).

Paragraph 6 of the particulars of claim states:

“In 2005, the Claimant and her parents left Saudi Arabia, and moved to Canada. On 12 July 2011, the Canadian Immigration and Refugee Board granted the Claimant refugee status. The reasons for the Claimant’s departure from Saudi Arabia and grant of refugee status (‘the Claimant’s Circumstances’) are provided in the Confidential Annex.”

Paragraph 5 of the brothers’ defence admits the first two sentences. It also admits that Rana’s “own summary” of her reasons for leaving Saudi Arabia and being granted refugee status are set out in the confidential annex. To the extent those matter, I deal with them below.

Paragraph 7 of the particulars of claim alleges:

“The Claimant held when leaving Saudi Arabia, and continues to hold, Saudi citizenship. The Claimant formerly held a Saudi passport, which expired on 27 September 2007 and was never renewed.”

That is addressed in paragraph 6 of the brothers’ defence. Rana’s Saudi citizenship is admitted. They make no admission as to her Saudi passports (what passport she held, when it expired, or whether it was renewed). But they say that if it was not renewed that was Rana’s choice. They make further allegations (based on inference, which they explain): [redacted text].

Paragraph 8 of the particulars of claim alleges:

“On account of the Claimant’s Circumstances, from 2005 she has been unable to:

8.1

acquire a National ID card or renew her Saudi passport, as the issue of these documents required the Claimant (1) to be physically present in Saudi Arabia to provide a photograph and fingerprints for the purposes of obtaining a National ID Card and (2) to have a National ID Card as a condition of obtaining a Saudi passport;

8.2.

personally pursue or participate in litigation, or execute any transaction that requires her physical presence in Saudi Arabia; or

8.3.

execute a valid Saudi power of attorney (‘POA’) (whether for the purposes of commencing proceedings or authorising someone to execute documents on her behalf) for the reasons set out in the judgment of Cockerill J in these proceedings dated 22 March 2024 [2024] 4 WLR 35.”

That is addressed in paragraph 8 of the brothers’ defence. It contains a series of denials. It does not raise any question of primary fact. It takes issue as a matter of law or practice with the suggestion that Rana needed to be physically present in Saudi Arabia in order to acquire a National ID or renew her Saudi passport, and points out that on Rana’s own case she had a valid Saudi passport until 2007. It does not rely on any allegation about [redacted].

Although it is referred to in the DRD, paragraph 7 of the brothers’ defence does not seem to me to be germane to Disclosure Issue [redacted]. It sets out a set of conclusions that the brothers say will follow if Rana “fails to prove” that she attempted to create a valid power of attorney in various ways. It does not, either expressly or by obvious inference, refer to any power of attorney under Canadian law, or for which [redacted] would matter (noting that “POA” is a defined term in the particulars of claim, meaning “valid Saudi power of attorney”).

Paragraph 5 of the confidential annex to the particulars of claim alleges various matters that are not directly relevant to this application. It is addressed in paragraph 7 of the confidential annex to the brothers’ defence, which admits that Rana left Saudi Arabia in 2005, and was granted asylum in July 2011 (matters already admitted on the non-confidential pleadings). None of the other matters in that paragraph is pertinent to this application.

In summary, therefore, the paragraphs referred to in the DRD to explain the focus of Disclosure Issue [redacted] consist of a mixture of admissions and points in issue. What is admitted is that Rana left Saudi Arabia in 2005, went to Canada, and was granted asylum in 2011. Although it is not formally admitted, there seems really to be no dispute that she has lived in Canada since 2005; there is no suggestion to the contrary. So far as her Saudi Arabian documents are concerned, there is no admission that Rana either had a passport which was valid until 2007, or that she has not had one since—but the thrust of the brothers’ case on this point is that she could have had one if she had wanted to, without needing to return to Saudi Arabia, and that she could have managed business in Saudi Arabia without one. So far as [redacted] the brothers positively alleged [redacted].

The reply (which is not referred to in the DRD, but seems to me to be relevant) takes issue with the contention that the claimant could travel to Saudi Arabia or conduct business. There is a partial admission (in that Rana accepts that until 2020 she could, as a woman, have renewed her passport outside Saudi Arabia, though she says that her “circumstances” made that impossible). The reply does not directly engage with the allegations about [redacted] documents, which are encompassed therefore in the general joinder of issue. In a draft amended reply, Rana wishes to insert a paragraph which says that she “does not plead” to those allegations because they are irrelevant. I do not think that makes any difference. If a reply does not admit an allegation, issue is joined; and it is joined just as effectively by a “refusal to plead” as by an express non-admission, or denial. There has been no application at any time to strike out the allegations about [redacted] made in paragraph 6 of the brothers’ defence.

It is therefore clear that—perhaps with the exception of the inquiry into [redacted], which does not appear to relate to any pleaded issue—Disclosure Issue [redacted] can fairly be said to relate to pleaded issues. How far they are important pleaded issues, in the sense of being likely to affect the outcome of the action, is a different matter, to which I shall return.

As I have set out, the DRD—including Disclosure Issue [redacted]—was agreed between the parties and approved by the court at the first CMC. On the day disclosure was to be given, Rana issued this application, seeking pursuant to PD 57AD para 14.1 to “withhold disclosure of any document concerning [redacted]. For convenience, I shall call those documents “[disputed] documents”, though I recognise that they go rather wider than that. The application seeks to amend Disclosure Issue [redacted] to delete all reference to [redacted]. It asks, in the alternative, to limit inspection of [disputed] documents only by physical inspection, without copying.

PD 57AD para 14.1 provides as follows:

“A person who wishes to claim a right or duty (other than on the basis of public interest immunity) to withhold disclosure or production of a document, or part of a document, or a class of documents which would otherwise fall within its obligations of Initial Disclosure or Extended Disclosure may exercise that right or duty without making an application to the court subject to—(1) describing the document, part of a document or class of document; and (2) explaining, in the Disclosure Certificate, the grounds upon which the right or duty is being exercised.”

(That is not in fact what Rana has done. Rather than rely on para 14 in her Disclosure Statement and wait to be challenged, she has actively anticipated that challenge by issuing an application. That does not make any difference of substance.)

Part of Rana’s argument is that she should be entitled to withhold disclosure or inspection on grounds that the disclosing [disputed] documents would cause harm to her rights out of proportion to any relevance they might have to the proceedings. But her application also involves (and indeed puts front and centre) the submission that [disputed] documents are in truth of no or marginal relevance, and that the DRD should be amended. That submission brings into play PD 57AD para 18:

“18.1

The court may at any stage make an order that varies an order for Extended Disclosure. This includes making an additional order for disclosure of specific documents or narrow classes of documents relating to a particular Issue for Disclosure.

18.2

The party applying for an order under paragraph 18.1 must satisfy the court that varying the original order for Extended Disclosure is necessary for the just disposal of the proceedings and is reasonable and proportionate (as defined in paragraph 6.4).

18.3

An application for an order under paragraph 18.1 must be supported by a witness statement explaining the circumstances in which the original order for Extended Disclosure was made and why it is considered that order should be varied.

18.4

The court’s powers under this paragraph include, but are not limited to, making an order for disclosure in the form of Models A to E and requiring a party to make a witness statement explaining any matter relating to disclosure.”

The possibility of varying DRDs is also contemplated in PD 57AD para 7.12, which states:

“The List of Issues for Disclosure may be revised or supplemented at any time prior to or following the case management conference, including as a result of statements of case or amended statements of case subsequently served or discussions between the parties in relation to the Disclosure Review Document.”

Both the brothers and Lama contend that Rana’s application must be an application to vary the DRD, and should fail because there are no grounds for variation under PD 57AD para 18, and indeed should fail in limine because the requirements of para 18.3 have not been met. For her part, Rana submits that para 18 is merely a “fall back”, and that her application can be dealt with under para 14. Indeed, in oral submissions at least, Mr Weekes KC, who appeared for her, went further. He contended that it was legitimate for Rana simply to decide that the [disputed] documents were not after all sufficiently relevant to the case to be disclosable at all, even as the DRD stands.

Paragraph 18 of PD 57AD empowers the court to vary disclosure orders without showing a change of circumstances, such as would often be required to vary an order (Chanel Ltd F W Woolworth & Co Ltd [1981] 1 WLR 485). In Invest Bank PSC v El Husseini [2024] EWHC 996 (Comm), [2024] Bus LR 1162, at [25], Mr Adrian Beltrami KC concluded that was indeed the effect of para 18. That was not disputed by the defendants, and I agree. I think that is a deliberate choice in the special context of disclosure. It reflects the common experience that as litigation proceeds, and more is learned about the documents and evidence, the disclosure landscape may shift without there being anything amounting to a concrete change of circumstances— that disclosure is a process rather than a moment, and requires flexibility. It also reflects a policy of encouraging parties to approach disclosure in a practical and cooperative way. The fact that the parties and the court are not “locked in” to an approach to disclosure that is set in stone facilitates that.

On the other hand, a disclosure order is still an order—requiring compliance—not simply a general guideline. And disclosure applications cannot be approached in the spirit of Groundhog Day, endlessly revisiting the same issues. So the burden lies on a party seeking a variation to justify it, and that the burden involves displacing the weight that necessarily attaches to the court’s previous conclusions. What must be justified is that the variation is “necessary for the just disposal of the proceedings” and that variation is “reasonable and proportionate”. Although that paragraph will often apply to applications to widen DRDs by imposing additional searches, and the language is most naturally appropriate to that, it is not so limited. If the complaint is that the existing order is too wide, it is not enough simply to show that a narrower order might have been sufficient: it must be shown positively that “the existing order is disproportionate such that it is reasonable and proportionate to reduce its scope”: Vannin Capital PCC v RBOS Shareholders Action Group Ltd [2019] EWHC 1617 (Ch) at [11]. I agree with the defendants, therefore, that to the extent that Rana seeks a variation of Disclosure Issue [redacted]—which she does, despite some coyness about it—she bears the burden of showing that the existing form of that issue needs to be narrowed in order to enable the “just disposal of the proceedings”.

Part of that is the requirement that the evidence supporting the application explain “the circumstances in which the original order for Extended Disclosure was made”. That must be because the circumstances are relevant. I do not, however, think that her evidence is so defective as to rule the application out of order. The requirement to explain the circumstances in which an order was made must be reasonably applied. Those circumstances are neither disputed nor complex: the DRD was agreed between the parties, based on the issues raised on the pleadings which are identified in the DRD. Mr Weekes told me, on instruction, that the concern now raised was overlooked by Rana when she agreed the issue. As to the court’s reason for approving that issue, Ms Prevezer KC was not asked to and did not give a reasoned judgment on the inclusion of this issue (but only to rule on one minor point about it, not now significant), so the court is not being asked to allow the parties to fight again over already adjudicated issues; but it was approved.

If Ms Bischof says little about the circumstances in which the DRD was approved, it is because there is little to say. In any case, since Mr Coffey has comprehensively filled any gap in Ms Bischof’s evidence in this regard, it would be the most arid elevation of form over substance not to consider the application on its merits.

I do not therefore think that the application falls at the first hurdle or for technical reasons because of a deficiency in the evidence in support of it. But in seeking to persuade me that it is necessary to vary the DRD (and in the evidence she adduces) Rana faces the obvious forensic difficulty that she identifies nothing that is remotely new or unexpected: if Disclosure Issue [redacted] is too broad, it always was too broad (including when she agreed to it); if it is likely elicit confidential or sensitive documents, it always was (including when she agreed to it), and she needs something stronger than simply esprit de l’escalier to justify its variation. The rest of the defendants’ criticisms, for instance as to the manner and timing of the application, may be relevant to costs, but do not seem to me to advance the actual argument.

Finally, I should say something about the relationship between PD 57AD para 14, and PD 57AD para 18. For obvious reasons, Rana prefers to present her argument as one under para 14, and the defendants prefer to present it as depending on para 18. In many cases the respective reach of these provisions will be obvious: para 18 will be used when the desire is to modify the scope of a search for a whole category of documents; para 14 where individual documents or classes of document, falling within the scope of an otherwise appropriate search, are to be withheld on particular grounds relating to their contents (such as privilege). But when a claim under para 14 encompasses a rather wide class, the differences inevitably lose sharpness.

However, I think that the argument here is most naturally considered, at least primarily, under para 18. Rana is not saying that particular [disputed] documents are, because of their contents, highly confidential, perhaps not even that considered one-by-one each of them is. She is saying that all of them are insufficiently relevant, and indeed that none of them is sufficiently relevant to justify disclosure at all.

Moreover, when the court is considering an application under para 14 to withhold inspection of a particular document or class of document, it will normally proceed on the basis that if the document is encompassed within a “key” issue for disclosure, it is indeed a key issue. There may still be room for argument about how significant a document is for that issue, but if a party wishes to contend that the issue in the DRD as such is not in fact “key” that needs to be treated, as in substance it is, as a request to narrow the issue itself. That is the position here. The argument is not that some documents (for example, [redacted]) is not important to Disclosure Issue [redacted]: it is that a whole category of documents expressly mentioned in Disclosure Issue [redacted] should be entirely excluded from disclosure.

I take the same approach to Rana’s submission that these documents, even though they fall within Disclosure Issue [redacted], were not in fact disclosable because they are not relevant. I think this misstates the relationship between the DRD and disclosure. It is correct that, when formulating issues for disclosure and deciding disclosure questions, the court is not bound to cover—and may not consider—every issue raised on the pleadings as a “key” issue requiring a specific kind of search. It is also correct that in deciding discretionary or evaluative issues about disclosure the question will often not be simply “could it be relevant?” but “how important to the entire case may it be?” But, once the search has been defined and conducted, I do not consider that a party could legitimately withhold a document from disclosure on the ground that, although adverse to its pleaded case or supportive of another party’s pleaded case, it is not “sufficiently” supportive to be a “key” document, because (after all) the pleaded issue to which it goes will not make a difference. A party may legitimately decline to disclose documents which, although responsive to the search, advance neither party’s case in a relevant way. But it would introduce unwarranted uncertainty into the process to permit a party to take the view that a document disclosed by a search goes squarely to a pleaded issue, but that the pleaded issue is not, after all, important.

The CPR offer different tools, appropriate to different tasks. If a party wishes to argue that a factual averment is irrelevant to the result of a case so that it should not be included in the pleadings and trial, the proper course is to apply to strike it out. Absent such an application, the court and the parties proceed on the basis of the factual issues defined by the pleadings. If a party wishes to argue that a Disclosure Issue is insufficiently material to justify a search as extensive as the DRD suggests, the proper course is to apply to vary the DRD. Absent such a variation, the DRD governs the approach to disclosure. In concrete terms, here, documents showing that Rana [redacted], if they exist, would unquestionably be disclosable documents if Disclosure Issue [redacted] remains as it is drafted and the brothers’ case remains as it is pleaded. As thing stand, therefore, they are disclosable.

In my view, read as a whole, what PD 57AD contemplates is the following:

Rana seeks, first and foremost, a systematic reformulation of Disclosure Issue [redacted] on grounds of relevance, and I think her application is best considered in that light, at least initially. But in doing so I shall also necessarily consider the things that are important for any inquiry under PD 57AD para 14.

In the context of disclosure under PD 57AD, “relevance” is a key concept. See PD 57AD para 2.1: “Disclosure is important in achieving the fair resolution of civil proceedings. It involves identifying and making available documents that are relevant to the issues in the proceedings.” But “relevance” can be used in at least four different senses. All these different aspects of “relevance” can matter, because disclosure is a means to an end.

The pleaded issues here concerning [redacted] documents in general fall into two categories.

First, there are issues concerning Saudi documents: Rana’s passports, their expiry, their possible renewal. The relevance of these documents to the proceedings is clear, since it is part of Rana’s case that they (or their absence) posed serious impediments to her participation in the PSC litigation, and that the brothers exploited that to cause her harm. But I need say nothing more about that, since disclosure of those documents is not in question.

Second, there are issues relating to [redacted]. That is, without doubt, a pleaded allegation; raised in the brothers’ defence, with issue joined in Rana’s reply (including in its amended version).

The [disputed] documents will, if they exist, be directly probative of that issue. If, for instance, Rana has a [redacted text], that will directly prove the brothers’ allegations. If she does not, it will directly disprove them. So these are documents that are relevant (likely to be probative) of a pleaded issue in the case, and where that relevance is direct, rather than a matter of oblique inference or “train of inquiry”. The documents are also relevant to a Disclosure Issue, in that they squarely fall within Disclosure Issue [redacted]. They therefore squarely fall within each of the first three meanings of “relevance” I set out above.

This is not in doubt. The point on which Rana takes her stand is that [redacted] is not itself an important point for the outcome of the case. Yes, it is pleaded; but pointlessly, because it does not form a key waypoint on the route to verdict. So, she submits, the fair resolution of the case does not require it to be considered, important as these documents might be to doing that.

In principle, that is a valid consideration in the context of extended disclosure, and especially when defining disclosure issues for extended disclosure. It is a point underlined in para 7.6 when discussing the way issues for disclosure should be formulated:

“ ‘Issues for Disclosure’ means for the purposes of disclosure only those key issues in dispute, which the parties consider will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings. It does not extend to every issue which is disputed in the statements of case by denial or non-admission. …”

It is, therefore, relevant to ask: how will understanding [redacted] matter?

I am not much assisted by reference to observations made by or to Cockerill J when she was dealing with the jurisdiction application. Those were directed mostly at a rather different point (namely Rana’s ability to participate as a claimant in proceedings in Saudi Arabia). It seems to me that, the case having now been pleaded, the parties ought to be able to explain on the basis of matters as they now stand whether the [disputed] documents matter, and how.

The question therefore is whether Rana’s [redacted] would have made a significant difference to her ability to manage her AICO shares. The brothers’ defence contains no express allegation that it would. I asked Mr Houseman KC, who appeared for the brothers, to help me understand the overall significance of the point in the context of the case. He gave two answers. First, he said, I should be slow to speculate too readily, at this stage of litigation, about how the case would develop as it moved towards trial. Secondly, in his skeleton argument, he canvassed how the argument might proceed.

As to the need to avoid undue speculation, I agree up to a point. Mr Houseman is right that pleadings, which should set out succinctly the factual points that a party intends to prove, do not generally define how they will be proved, or exactly how those primary facts will be put together to establish liability. However, when considering the importance of an issue for disclosure, it may be necessary to press further, and the parties need to be ready to explain, at least in broad terms, the part they envisage a particular fact playing in the case as a whole.

As to the brothers’ explanation of that, their case was sketched along these lines. Even if Rana had not been able to execute a valid Saudi Arabian power of attorney or travel to Sauda Arabia to transact judicial business, she might have been able to execute a Canadian power of attorney which would have enabled her to sell AICO shares. [Redacted] would have facilitated that.

It is fair to say, as Mr Weekes did, that the intermediate steps of this argument are not, even as primary facts, alleged in the brothers’ defence. It contains no suggestion that Rana could or should have used a Canadian power of attorney to manage or realise the value of her AICO shares. More significantly, in my view, even if that case were central to the defence, I was left uncertain how [redacted] would matter. I would be surprised if, under Canadian law, the right to execute a power of attorney is [redacted]. Nor is there evidence or allegation that Saudi law would [redacted] to recognise a Canadian power of attorney. And, if it ever would, one might think that the combination of Rana’s admittedly continuing Saudi citizenship coupled with [redacted] under Saudi law would stand in the way.

So I am left with a puzzle. There is no doubt that the brothers have alleged that Rana has [redacted], and that they seem keen to obtain evidence to support that inference. But they have not, either formally in their defence or discursively in their argument before me, produced a clear or coherent explanation of why it is a fact that would be likely to weigh in the balance when it comes to their liability.

On that basis, it seems to me, the inclusion of the [disputed] documents as a “key issue” for disclosure is at least open to question, because it is not clear in what sense it is “key”.

The defendants, however, make three further points. First, they say that the [disputed] documents will be bound to be “key adverse documents”. The basis of this submission, which was made in skeleton arguments but not developed orally, is a concession by Rana’s counsel on a previous occasion that a document showing Rana “banding [sic] around her personal information in a way that is inconsistent with her pleaded case” would be such a document. That must be right. I cannot see, however, that the [disputed] documents would fall into that category, at least generally. [Redacted text.] In short, while it is possible that the category may include known adverse documents, I do not think it can be said as a matter of logic or common sense that any [disputed] document will be such a document. On the contrary, I would expect very few to be, and probably none.

A stronger submission might be that even if not adverse for the stated reason, documents showing [redacted] would be adverse in the sense that the information they must contain “contradicts or materially damages [Rana’s] contention or version of events on an issue in dispute, or supports the contention or version of events of an opposing party on an issue in dispute, whether or not that issue is one of the agreed Issues for Disclosure”: PD 57AD, para 2.7. I think that in that paragraph “issue in dispute” must be defined as an issue on the pleaded cases; and as I have explained there is no doubt that [redacted] is such an issue, and that issue is joined.

Second, the brothers say that the documents will be relevant to an application that Rana is likely to make to give evidence by video-link from Canada. I would not regard this as a solid basis for treating them as within a “key issue” for extended search. In so far as the basis for that application relies in any way on the claim that Rana does not have and cannot obtain a travel document, then [redacted] would be relevant, though it would be most unlikely to be centrally relevant, since there is undoubtedly much more to the application than that. It would still not follow that disclosure would be ordered, and if disclosure were ordered, which would be outside the norm for such an interlocutory issue, it would I think be far more limited than Disclosure Issue [redacted]. In any case, I do not think it proper to muddle up disclosure which is necessary for the merits of the case with disclosure which may be relevant to a particular interlocutory issue.

Third, the brothers say that the documents will be relevant to credit and that—albeit exceptionally—the disclosure of documents relevant to credibility may be ordered. It would be indeed an exceptional case in which an order would be made of documents just because they go to credit. But in any case, given the wide range of disclosure that is to be given on issues which already go to credit (for example of documents that are directly relevant to her personal circumstances and the effect they had on her ability to own and manage AICO shares), the addition of this issue would not be justified. Rana has consistently declined to say [redacted]. But she has not asserted that she has not, so documents proving that she had would not significantly dent her credit.

In my view, therefore, the [disputed] documents cannot really be described as going to truly central aspects of the merits of the brothers’ defences; they appear to have, at most, marginal relevance to the important issues in the case, though undoubtedly a direct relevance to issues that have been pleaded, but which have no obvious significance to the central claims.

The evidence served on Rana’s behalf refers to rights under Articles 2, 3, and 8 of the Convention. Although I understand why the brothers objected to the way those issues had been raised, I prefer to address them on their merits.

In oral submissions, Rana did not pursue any submission under Articles 2 and 3. Neither of those articles involves any “balancing exercise”, in the sense that neither is a qualified right. However each requires, in circumstances such as this, an evaluative assessment based on objective evidence. The UK’s positive duty under Articles 2 and 3 is engaged only if the step that the court is considering making or refusing to make entails a “real and immediate” threat (Re Officer L [2007] 1 WLR 2135 at [29]). In that regard a real threat is one which is “substantial or significant” and the “threshold is high” (Re Officer L at [20]). In terms of immediacy, the focus should be on “a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future”: Rabone v Pennine Care NHS Trust [2012] 2 AC 72 at [38]–[39] (Lord Dyson). Rana accepts that the evidence does not objectively establish a risk of that sort. I agree. We can put Article 2 and 3 aside.

Rana also relies on Article 8. That raises different questions, because the right under Article 8 to “respect for … private and family life, … home and correspondence” is not unqualified, but subject to interference where it is “in accordance with law and … necessary in a democratic society … for the protection of the rights and freedoms of others”. Disclosure orders, which routinely encroach on an individual’s right to privacy, are “in accordance with law”, and where the court determines that documents are relevant, it must engage in a balancing exercise having regard to the weight of the rights asserted, including the fair trial rights of the party to whom disclosure is to be given.

This was discussed by the Court of Appeal in Durham County Council v D [2012] EWCA Civ 1654, [2013] 1 WLR 2305 at [23] (Maurice Kay LJ). He set out the following principles:

“First, obligations in relation to disclosure arise only where the relevance test is satisfied. Relevance can include ‘train of enquiry’ documents which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of a document or who would be adversely affected by its disclosure to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing Convention rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again the limitation or restriction must satisfy the test of strict necessity.”

I should address one point in this respect, though it is I think a cul de sac. Lama submits that confidentiality does not justify withholding disclosure under para 14 of PD 57AD, because that paragraph concerns only rights and duties. I think that is too sweeping. Paragraph 14 applies when there is either a “right” or a “duty” to withhold disclosure. In appropriate circumstances, confidentiality may be either. In this case, Rana does assert a “right” to withhold disclosure, because she contends that Article 8 applies. She also points out that the common law recognises that an individual has rights in private information, and that equity may recognise confidentiality rights too. All these are, I accept, “rights” within the scope of para 14. In other words, it is not necessary for a person who invokes para 14 (or CPR 31.19) to establish a specific right to withhold disclosure. It is sufficient to establish that the law recognises confidentiality rights over the relevant documents—a legally recognised entitlement to maintain (against third parties) the documents’ confidentiality. Where rights in that sense exist, the court may be asked to consider whether the need to resolve civil litigation justifies overriding that privilege.

In Durham County Council v D, Maurice Kay LJ referred to a test of “strict necessity” as the foundation of the balancing test. This should not be misunderstood, particularly in a case where the court is considering what order to make in respect of a DRD. Once the court has decided that disclosure of a particular category of documents is prima facie necessary in order for the party seeking disclosure to fairly try the case, it is obvious that only a strict test will enable the court to decide that those rights are outweighed by some else’s privacy rights. But, as Maurice Kay LJ points out, that always remains a “balancing exercise”, because what is “strictly necessary” will inevitably depend both on the strength of the privacy rights engaged, and on the risk of unfairness if the documents are not disclosed. Although the matter should be considered systematically, therefore, relevance and the necessity for non-disclosure cannot be considered in isolation.

I would not normally consider [redacted] to raise weighty privacy interests for the purposes of Article 8. On the contrary, these are (in most cases, though the circumstances will always matter; I make no comment on the particular circumstances here, but on the general position) matters of more or less public record, quite unlike sensitive medical, financial, or family matters. In so far as Ms Bischof asserts that these are “inherently” confidential, I do not think she makes a weighty point: so they are, but not to any great extent. Moreover, in circumstances where Rana positively relies on some aspects of [redacted], it might well be said that less privacy can and should attach to the whole picture.

Rana, however, submits that the evidence shows that [redacted]. She asserts that if documents which might show that she has [redacted], thereby harming her interests.

That gives her a subjective concern that if she has [redacted]—something, of course, that she does not admit or assert, but which she accepts the [disputed] documents might show—[redacted] which would at least distress her. She stresses that subjective fears, whether or not they have objective force, may be sufficient for these purposes, since Article 8 aims to protect an individual’s subjective sense of identity and security.

I accept that subjective concerns may be sufficient to invoke Article 8. A person may have an interest in privacy without being able to show that any specific harm, beyond the revelation of private information itself, will follow from disclosure. That is part of the core of Article 8. But when the court is being asked to sanction non-disclosure, it must be relevant to consider the extent to which subjective fears are objectively justified. In this respect, the evidence is thin. There is no evidence that any particular consequences follow when [redacted].

[Redacted text.]

I therefore consider that the disclosure of [disputed] documents would involve only a relatively slight encroachment on Rana’s privacy rights. [Redacted] does not ipso facto engage inherently strong privacy interests; it is already in issue in the case in a variety of ways; and her subjective concerns (though understandable in human terms, given the history she recounts, and relevant) are not supported by objective reasons of any real cogency.

I am faced with a situation in which I find each side’s contentions hyperbolic. The defendants present the [disputed] documents as if they constituted a key to the labyrinth; but they rationally appear to be marginally relevant to the outcome of the case at best, though squarely relevant to a pleaded contention. Rana proceeds on the basis that their disclosure would be an interference with weighty privacy rights touching her vital interests; but they appear to be unlikely to cause her any tangible harm, and the subjective fears to which she refers are not justified by cogent objective evidence of any significant increased risk to her.

So I return to basic principle. I am not being asked to start from a blank slate, but from an agreed DRD that the court has sanctioned. As things stand, the DRD identifies these as documents bearing on a “key issue” for disclosure. So far as para 18 is concerned, the burden lies on Rana to satisfy me that it is necessary to vary the DRD in order to enable the case to be decided justly. She has not satisfied that burden. Disclosing the [disputed] documents would not obstruct the just resolution of this case. They are directly relevant to a pleaded issue; although I have considerable doubt whether that issue will ultimately matter, it remains a pleaded allegation, and its resolution will (at worst) prove a side-show. It is not suggested that the search for the [disputed] documents is burdensome, or that they are so numerous that disclosure will be disproportionate. The only justification for their non-inclusion among issues for disclosure is that they are private and confidential. But the risks attendant on their disclosure, if necessary with appropriate safeguards, are slight; they fall well short of showing that secrecy is “necessary”.

For those reasons, Rana has not persuaded me to the requisite standard that an amendment of the DRD is justified.

As to para 14 of PD 57AD, I reach the same conclusion as far as disclosure is concerned. Rana’s subjective fears are not weighty enough to displace the need to disclose the [disputed] documents in order to address what remains a pleaded issue, on which they are likely to directly bear. Indeed, it is difficult to see how that issue can be resolved fairly, except by their disclosure. Moreover, under the disclosure regime specified in PD 57AD, they are squarely within an issue that the parties agreed should be disclosed, that the court ordered should be disclosed following a Model D search, and which I have no sufficient reason to vary. The same conclusion would apply to the extent that the [disputed] documents are “known adverse” documents.

There remains, however, the possibility of limiting inspection. That raises different considerations, because the court may be justified in imposing protective measures to protect confidentiality or privacy concerns even if those concerns do not justify complete non-disclosure. The test to be applied remains that of necessity, but to the extent that the interference with the efficient and fair trial of the action is reduced, the test is easier to satisfy.

Rana submits that the order should permit physical inspection of the documents only. In her evidence, she says that she has no trust in the Defendants. The Brothers interpreted the relevant passages to include an allegation that there would be deliberate misuse by them, but that was not ultimately how Rana put it at the hearing. At the hearing she cited concerns that if documents (hard copy or electronic) are handed over, there is always a risk of mistakes being made.

If the documents were highly sensitive, or even more starkly their dissemination carried a risk of physical harm, such concerns might carry the day. But they are not, I find, in this category. I do not consider that such an order is justified. It might seriously impede the defendants giving and taking instructions. There are already many highly confidential matters in this case in relation to which no such extraordinary steps have been taken, and I would generally expect experienced lawyers and counsel to be astute to protect confidential documents, whether in hard- or soft-copy.

The defendants’ proposal is that the documents should be held securely in the jurisdiction by their respective solicitors, and that if the defendants themselves wish to see copies, they should attend Rana’s solicitors’ offices to look at them. With two qualifications, I accept that this proposal is appropriate. The first qualification is that I do not consider that it is necessary for the defendants to attend Rana’s solicitors’ offices to inspect documents. I think it is sufficient if (a) the defendants’ solicitors notify the claimants’ solicitors at least 7 working days in advance of any inspection by the defendants and then (b) that inspection takes place at the defendants’ solicitors’ offices, but without provision of hard- or soft-copy documents to the defendants themselves. This will not prevent the defendants’ solicitors informing the defendants of the factual matters that the documents establish in order to take instructions. The second qualification is that I think that not only the documents themselves, but their contents should be addressed in the existing confidentiality order. Those protections seem to me to be justified and sufficient to address the substance of Rana’s subjective concerns. I shall hear counsel on the precise form of my order.