Dare International Limited v Omar Kayaam & Ors

The claimant, Dare International Limited (“Dare”), which is a proprietary trading business operating in the global energy markets and which is pursuing a claim against its former employee, Ali Ersen, seeks an order for third party disclosure against three individuals who work for, and seven companies who are part of, the Onyx Group of companies (“Onyx”), Dare’s principal competitor. The three individual respondents are: Omar Kayaam, co-founder and chief investment officer; Greg Newman, co-founder and chief executive officer; and John Beckwith, the chief of staff at Onyx Commodities Limited. The hearing of the application occupied the whole of Tuesday, 18 March 2025. I indicated that I would aim to give judgment today, since there is to be a pre-trial review in Dare’s action against Mr Ersen tomorrow, Friday 21 March 2025, and the trial is due to start on Wednesday 9 April 2025. Since this is an ex tempore judgment, I may not refer expressly to every submission which was made to me, but I confirm that I have taken account of all of the submissions which have been made by Dare and by the respondents.

In summary, the background to the claim is as follows. Mr Ersen resigned from Dare on twelve months’ notice on 25 April 2024. Thereafter, he failed to return to work, asserting that he was too unwell to do so by reference to sick notes which stated, “Stress at work” and, on one occasion, “Stress, anxiety.” Then, after almost six months of paid sick leave, on 22 October 2024 Mr Ersen asserted that he had been constructively dismissed by Dare because of its alleged failure to respond to a letter which he had sent on 15 October 2024. Mr Ersen purported to resign for a second time, this time without notice. He thereafter alleged that he was not bound by his twelve-month post-termination restrictions.

Dare contends that there was and is no proper basis for the assertion of constructive dismissal, since Dare contends that it is not in breach of contract, far less in repudiatory breach. Dare itself then purported to terminate Mr Ersen’s contract of employment on 28 October 2024 by making a payment in lieu of the balance of Mr Ersen’s notice. On 12 November 2024 Dare issued proceedings and made an urgent application for interim injunctive relief over to an expedited trial. On 19 November 2024 Mr Ersen gave undertakings to the court and directions were made for an expedited trial which, as I have said, is to commence on 9 April 2025.

Unknown to Dare, Mr Ersen had had recruitment discussions with Onyx, starting before Mr Ersen first resigned from Dare in April 2024. The fact of these discussions is not in issue in the action. Mr Ersen refers in paragraph 50(3)(c) of his defence to what he calls “his own lawful recruitment discussions with Onyx in or around the late spring or summer of 2024”. In paragraph 44.3 of the reply, Dare denies that Mr Ersen had lawful recruitment discussions with Onyx.

Mr Ersen has disclosed communications exchanged between him and Mr Kayaam, Mr Newman and Mr Beckwith. These and other documents disclosed by Mr Ersen reveal the following:

However, in his disclosure statement dated 26 February 2025 Mr Ersen has stated that he has deleted all WhatsApp messages between him and Mr Beckwith from May 2024 to September 2024 and it appears that he did so after litigation was in contemplation.

Dare contends that Mr Ersen’s actions and the timing of his communications with Onyx share remarkable similarities with what Onyx did in relation to the two other senior employees of Dare whom I have mentioned, Mr Soliman, who resigned on 20 November 2023, and Mr Hikmet, who resigned on 14 February 2024. The circumstances of their resignations were the subject of a judgment handed down on 5 February 2025 by Sheldon J in Dare International Limited v Soliman and Hikmet [2025] EWHC 227 (KB) (“the Soliman/Hikmet proceedings”). Dare relies, in particular, on the following findings by Sheldon J:

The respondents submit that they were not parties to the Soliman/Hikmet proceedings. They also point out that Sheldon J found that this was not a team move type case, that Mr Soliman’s illness was genuine and that collusion with Onyx did not explain Mr Soliman’s behaviour.

In those circumstances, Dare contends that it can be inferred that:

Dare also contends that there are a number of obvious gaps in the communications which have been disclosed by Mr Ersen. Thus, Dare says that Mr Ersen has not disclosed any WhatsApp messages or messages in any other form after mid-July 2024 between him and other individuals at Onyx and that there are significant gaps in the disclosure through to July 2024. It is also the case that Mr Ersen has not disclosed any documents relating to matters such as terms of employment, sign-on bonus, indemnity, the length of any post-termination restraints or in respect of discussions about asserting that he was too unwell to work or that he had been constructively dismissed.

In a witness statement dated 13 March 2025 Mr Beckwith has said as follows:

The order sought is in the following terms:

“1.

The First to Third Respondents shall each give disclosure by list and simultaneous inspection by copy document ... of communications within their control:

(a)

sent or received by each of the First to Third Respondents to or from Mr Ersen from 1 April 2024 to 30 November 2024; and

(b)

between (including between each of them) any of the First to Third Respondents and any other officer, employee or agent of any Onyx entity (including Axis Limited) in respect of Mr Ersen’s recruitment/prospective recruitment by Onyx (including Axis Limited) from 1 March 2024 to 30 November 2024.

2.

The Fourth to Eleventh Respondents shall give disclosure by list and simultaneous inspection by copy document ... of communications within their control:

(a)

sent or received by any Onyx entity (including Axis Limited) or any of their officers, employees or agents to or from Mr Ersen (or his agents) from 1 April 2024 to 30 November 2024; and

(b)

between any Onyx entity and/or any officers, employees or agents of any Onyx entity (including Axis Limited) in respect of Mr Ersen’s recruitment/prospective recruitment by Onyx (including Axis Limited) from 1 March 2024 to 30 November 2024.

3.

For the purposes of paragraph 1 above, “communications” means any record of any description containing information, including logs of telephone or video discussions. In particular, a communication may take any form including but not limited to paper or electronic forms; it may be held by computer or on portable devices such as memory sticks or mobile phones or within databases; it includes e-mail and other electronic communications such as text messages, webmail, social media and voicemail, audio or visual recordings. In addition to information that is readily accessible from computer systems and other electronic devices and media, “communications” extend to information that is stored on servers and back-up systems and electronic information that has been ‘deleted’. It also extends to metadata, and other embedded data which is not typically visible on screen or a printout.

4.

For the purposes of paragraph 2 above, “communications” shall have the same definition as at paragraph 3, excluding logs of telephone or video discussions. …”

Section 34(2) of the Senior Courts Act 1981 provides as follows:

“On the application, in accordance with rules of court, of a party to any proceedings to which this section applies, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim—

(a)

to disclose whether those documents are in his possession, custody or power; and

(b)

to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order—

(i)

to the applicant’s legal advisers; or

(ii)

to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or

(iii)

if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.”

CPR 31.17 provides as follows:

“(3)

The court may make an order under this rule only where–

(a)

the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b)

disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4)

An order under this rule must –

(a)

specify the documents or the classes of documents which the respondent must disclose; and

(b)

require the respondent, when making disclosure, to specify any of those documents –

(i)

which are no longer in his control; or

(ii)

in respect of which he claims a right or duty to withhold inspection.

(5)

Such an order may –

(a)

require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b)

specify the time and place for disclosure and inspection.”

I have been referred to many authorities on CPR 31.17. I bear them all in mind, but I do not propose to refer to them all in this judgment. I mention at this stage some points of general application. I will deal later with authorities which touch on specific issues. First, it is to be noted that the provisions of CPR 31.17 are narrower than those of section 34(2): see Three Rivers District Council v Bank of England (No.4) [2002] EWCA Civ 1182; [2003] 1 WLR 210 (“Three Rivers”) at paragraphs 27 and 28.

The second point is that the provisions of CPR 31.17(3)(a) are narrower than the test for standard disclosure and a fortiori are narrower than the wider approach to disclosure which prevailed before the Woolf Reforms: see Henry v News Group Newspapers Limited [2011] EWHC 1364 (QB) at paragraph 21; and WH Holding Limited v E20 Stadium LLP [2018] EWHC 2971 (Ch).

The third point is that this is an exceptional jurisdiction. Third party disclosure orders are the exception rather than the rule: see paragraph 10 of Scott Baker LJ’s judgment in Frankson v Home Office [2003] 1 WLR 1952 (CA); paragraph 22 of Flood v Times Newspapers Limited [2009] EMLR 18 (QB) (“Flood”); and paragraph 7 of Ang v Reliantco Investments Limited [2020] EWHC 2529 (Comm). It has been said that this is a jurisdiction which should be exercised with some caution: see Re Howglen Limited [2001] 1 All ER 376 at 382H.

Fourthly, it has also been said that the criteria in CPR 31.17 are “very strict”: see Flood at paragraph 72; and Henry v News Group Newspapers Limited.

Fifthly, it is for the applicant to establish that the court has power to make the order sought: see WH Holding Limited v E20 Stadium LLP at paragraph 6.

CPR 31.17(3) requires me to ask myself three questions:

In addition:

I will address the points raised by the respondents and then the three questions raised by CPR 31.17.

It is undoubtedly the case that this application was brought at short notice. Dare first wrote to the respondents on 5 March 2025 and the application was made on 10 March 2025 and heard on 18 March 2025. On the other hand, the context for this is that it was only on 25 February 2025 that Mr Ersen revealed that he had deleted WhatsApp messages and the trial, as I have said, is due to start on 9 April 2025. The respondents submit that Dare’s behaviour was unreasonable. Dare submits that it was clear that the respondents would have resisted the application if they had been given more time to respond to pre-action correspondence and that it was appropriate to proceed with expedition in a case where an expedited trial was fast approaching. I note that the respondents were able to file evidence in response to the application and to argue fully their case in response to the application at the hearing on Tuesday.

The respondents also submit that Dare should have pursued a specific disclosure application against Mr Ersen before troubling the respondents with this application. Dare submits that it was under no obligation to delay this application until after the conclusion of any specific disclosure application. It is pointed out in this respect that Constantin Medien AG v Ecclestone [2013] EWHC 2674 (Ch) was an example of a case in which third party disclosure applications were heard and determined before the relevant specific disclosure application had been determined, although in that case the applications were heard together.

Having regard to all the circumstances of the case, and particularly the impending trial, I do not consider that either of the matters relied on by the respondents in support of their claim that the application is premature should prevent me from determining the application at this stage.

The respondents make a number of submissions about the terms of the proposed order. I will return to some of those submissions, but I deal here with the submission that the classes of documents set out in paragraphs 1(b) and 2(b) of the order are too wide because they contain the words “in respect of” and/or because the documents sought do not all relate to the same subject matter.

Dare accepts, by reference to paragraphs 66 and 67 of Vos J’s judgment in Constantin Medien AG v Ecclestone, that an order made under CPR 31.17 must be framed in such a way that it does not require the recipient to exercise any judgment as to whether a particular document is or is not relevant to the issues in the case, to which it is not a party. However, as Mr Sethi accepts, the draft order would not require the respondents to do that. Dare submits that there is no authority for the proposition that an order cannot be made for production of a class of documents which is defined using the words “in respect of”. I accept that submission. Indeed, I note that Pride Valley Foods Limited v Hall & Partners (Contract Limited) [2002] 5 WLUK 182 (“Pride Valley”) is an example of a case in which third party disclosure was ordered of a category of documents which was defined using the words “documents relating to”: see paragraphs 42, 43 and 45 of HHJ Toulmin’s judgment.

As for the respondents’ submission that the documents sought must all relate to the same subject matter, Dare submits that there is no authority to that effect and that, in any event, the documents sought do all relate to the same subject matter, namely, Mr Ersen’s recruitment or prospective recruitment by Onyx. I accept that submission.

The respondents submit that, as a matter of law, an applicant for a third party disclosure order has to prove that the documents sought exist. I took this to mean prove on a balance of probabilities. The respondents rely for this purpose on the following passages from Pumfrey J’s judgment in Re Howglen Limited at 382H to J and 383B:

“However, in respect of a request for a class of documents it seems to me that notwithstanding the provision which I have read relating to the costs of the application and of compliance with any order made pursuant to it, it is nonetheless necessary to be satisfied that there are documents falling within the classes which are specified and those documents are – not may be – documents in relation to which disclosure will support the case of the applicant or adversely affect the case of one of the other parties to the proceedings.”

“Equally, it seems to me that the court must be satisfied that the documents do in fact exist, since it is not right to send the non-party off on a search before it can satisfy itself that no such documents do in fact exist.”

The respondents also rely on paragraph 34 of Eady J’s judgment in Flood, but I agree with Dare that that paragraph merely refers to a submission made by counsel based on what was said in Re Howglen Limited. Eady J’s decision in Flood does not refer to any issues as to the existence of the documents sought. The respondents also submit that there is no authority for the proposition that it is sufficient to show that documents sought are likely to exist.

Dare relies on paragraph 15 of HHJ Toulmin’s judgment in Pride Valley, in which he disagreed with the degree of certainty which Pumfrey J required in relation to the existence of documents. I agree with HHJ Toulmin. CPR 31.17 does not include a separate requirement concerning the degree of certainty which must be shown as to the existence of documents. It is sufficient for the applicant for a third party disclosure order to show that the relevance test and the necessity test are met. It seems to me that any dispute as to whether the documents sought exist should be considered in the context of the relevance test on the basis that a document which does not exist is not, in the words of the relevance test, “likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings.”

The respondents submit, and I do not understand it to be disputed, that the word “case” in CPR 31.17(3)(a) means a party’s current pleaded case: see Abbas v Yousuf [2014] EWHC 662 (QB) at paragraph 30; Flood at paragraphs 10, 13, 56 and 57; and Gardiner v Tabet [2020] EWHC 1471 (Ch). Dare does not invite me to decide the application by reference to any possible future pleaded case, but rather the pleadings as they currently stand.

In Three Rivers the Court of Appeal held at paragraphs 32 and 33 that the word “likely” in CPR 31.17(3)(a) does not require proof on a balance of probabilities, that it connotes a rather higher threshold of possibility than “more than fanciful” and that it means “may well”. The court said as follows about the use of the word “likely” in paragraph 29:

“Second, the threshold condition in CPR 31.17(3)(a) is lowered by the qualification “likely to”. It is not necessary that the documents of which disclosure is ordered will support the applicant’s own case or that they will adversely affect the case of another party; it is enough that they are likely to do so. The explanation for that difference is also obvious; the rule making body appreciated that an applicant cannot be expected to specify which documents under the control of another - which he may never have seen – will support his case or adversely affect that of another party, or to know whether he will wish to rely upon them. …”

The court noted in paragraph 28 that one of the factors taken account of in CPR 31.17 is that the applicant does not have and may never have seen the documents of which he seeks disclosure. The court also held that where production is sought of a class of documents, all of the documents in the class must satisfy the relevance test. At paragraph 36 of its judgment the court said as follows:

“Lord Justice Aldous, with whose judgment the other members of this Court (Lord Justice Robert Walker and Sir Anthony Evans) agreed, accepted that the court had no power to make an order under CPR 31.17 in respect of a class of documents if it were established that there were documents within the class that were not relevant to any issue in the proceedings – in the sense that they did not satisfy the threshold condition of “documents ... likely to support the case for the applicant or adversely affect the case of one of the other parties ...”. That, if we may say so, must be right. The rule gives no power to order a non-party to disclose documents which do not meet the threshold condition in paragraph (a) of sub-rule (3); and that cannot be circumvented by including documents which do not meet that threshold condition in a class which also includes documents which do meet that condition. …”

On the other hand, the Court of Appeal drew the following distinction in paragraph 37 of its judgment:

“… The distinction is between documents which are likely to support the case of the applicant or adversely affect the case of one of the other parties – which can be the subject of an order for disclosure – and documents which, in the event, turn out not to support the case for the applicant or adversely affect the case of one of the other parties – the presence of which within a class does not lead to the conclusion that the class ought not to have been the subject of an order for disclosure.”

Then in paragraph 38 the Court of Appeal set out a number of principles, following its consideration of the judgment in American Home Products Corporation v Novartis Pharmaceuticals UK Limited [2001] FSR 41 (CA):

“The judgments of this Court in the Novartis case may be taken as authority for the following propositions. First, as we have said, (i) CPR 31.17 gives no power to order a non-party to disclose documents which do not meet the threshold condition in paragraph (a) of sub-rule (3); and (ii) that cannot be circumvented by including documents which do not meet that threshold condition in a class which also includes documents which do meet that condition. Second, the test under the threshold condition is whether the document is likely to support the case for the applicant or adversely affect the case of one of the other parties. Third, when applying that test it has to be accepted (and is not material) that some documents which may then appear likely to support the case of the applicant or adversely affect the case of one of the other parties will turn out, in the event, not do so. Fourth, in applying the test to individual documents, it is necessary to have in mind that each document has to be read in context; so that a document which, considered in isolation, might appear not to satisfy the test, may do so if viewed as one of a class. Fifth, there is no objection to an order for disclosure of a class of documents provided that the court is satisfied that all the documents in the class do meet the threshold condition. In particular, if the court is satisfied that all the documents in the class (viewed individually and as members of the class) do meet that condition – in the sense that there are no documents within the class which cannot be said to be “likely to support ... or adversely affect” – then it is immaterial that some of the documents in the class will turn out, in the event, not to support the case of the applicant or adversely affect the case of one of the other parties.”

Dare submits that it is common ground on the pleadings that there were discussions between Onyx and Mr Ersen. The disclosure given so far shows that those discussions included communications, which is what the order seeks. Dare submits that it does not know what form those communications took, i.e. whether they were limited, in the case, for instance, of Mr Beckwith, to WhatsApp messages or included, for instance, emails or other forms of communication. Dare submits that in assessing the relevance test I should bear in mind the context, which is that both Mr Ersen and Mr Beckwith say that they have deleted communications, i.e. WhatsApp messages, and that communications were also deleted by Mr Hikmet on the instructions of Mr Beckwith. Moreover, it is admitted by Mr Beckwith that Mr Kayaam may have provided indicative figures to Mr Ersen. By 1 May 2024 Mr Ersen was speaking of an offer from Onyx. On 13 June 2024 Mr Ersen was saying of Onyx, “They’re gonna send contracts” and “Gonna go through lawyers now”, albeit shortly after that he was noting that contracts had not been received. Nevertheless, on 22 July 2024 he was still expressing the view that he was heading off to Dubai.

The respondents submit that the only communications between Onyx and Mr Ersen were the documents which have been disclosed by Mr Ersen and those which Mr Ersen has acknowledged that he has deleted and that Dare has no evidence that there were any other communications with Mr Ersen. The respondents further submit that, in those circumstances, Dare’s application involves speculation as to what documents may have existed and that Dare is seeking disclosure of documents on the basis that they would complete the story, which falls far short of what the relevance test requires.

The particulars of claim do not name Onyx. They were pleaded at a time when Dare did not know that Mr Ersen had been in discussion with Onyx. However, they do allege that there was a real and substantial risk that Mr Ersen would commence employment before 28 October 2025 in breach of his post-termination covenants, that he had obtained a springboard advantage by inter alia soliciting Dare’s employees and/or its brokers and/or trading counterparties, that Mr Ersen’s wrongdoing had put Dare at a serious competitive disadvantage in the event that he commenced employment with a competitor and that Mr Ersen’s wrongdoing would confer a serious competitive advantage on Mr Ersen and any competitor which he joined.

Dare has listed in paragraph 50 of Mr Sinclair’s witness statement six pleaded issues to which it says that the documents sought are likely to be relevant. These are not by any means the only issues in the case. They are:

I will refer to these as “issues 1 to 6”. Dare says that the documents sought may well assist the court on all of these issues, but that it is sufficient if they may well assist its case on at least one of these issues. The respondents submit that the relevance test is not met because Dare has no pleaded case which names Onyx and, in particular, there is no pleaded allegation that Onyx was involved in Mr Ersen’s alleged wrongdoing, whereas there was such a pleaded case in the Soliman/Hikmet proceedings. Dare submits that this misses the point, since Dare is pursuing a claim against Mr Ersen, not Onyx. Dare further submits that there is no authority for the proposition that the respondent to a non-party disclosure application has to be named in a pleading or has to be subject to an allegation of wrongdoing. Dare also submits that, in any event, it is now known that Onyx is the competitor referred to in the particulars of claim.

The respondents also submit that the classes of documents sought are too wide because they would catch lawful as well as unlawful discussions. Dare submits that the lawfulness of the discussions is not the only issue to which the documents sought are relevant. In any event, Dare submits that it may well be the case that the documents sought assist its case on the unlawfulness of the discussions. Dare also submits that it may well be that the documents sought show that Onyx has given Mr Ersen an indemnity, the significance of which was addressed by Jack J in paragraph 142 of his judgment in Tullett Prebon Plc v BGC Brokers LP [2010] EWHC 484 (QB); [2010] IRLR 648. The respondents rely on Mr Beckwith’s statement in his witness statement that Mr Ersen was not given a formal indemnity, but his use of the word “formal” there was, submits Dare, carefully limited.

As for issue 1, the respondents submit that this is likely to turn on the medical evidence. Against that, Dare submits that the medical evidence is scant, with Mr Ersen having no relevant prior medical history and doctors basing their opinions on what Mr Ersen told them. In any event, Dare submits that the fact that the medical evidence would be relevant on this issue would not mean that the documents sought did not pass the relevance test.

As for issue 2, Dare contends that Mr Ersen made a false assertion of constructive dismissal. The respondents say that the issue will turn on whether Dare acted in repudiatory breach of contract. Again, Dare submits that that does not mean that the documents sought are irrelevant in the sense that they do not pass the relevance test, since the court will have to consider why Mr Ersen resigned and Dare relies in this respect on what Jack J said in Tullett Prebon Plc v BGC Brokers LP at paragraph 86:

“As is stated in Brearley & Bloch’s Employment Covenants & Confidential Information, 3^rd edition, paragraph 9.68:

“The courts will, however, continue to scrutinise closely the arguments of employees (particularly highly paid individuals and teams moving to a competitor of their employer) who have already secured alternative employment prior to resigning, and who construct arguments of repudiatory breach as a means of avoiding notice periods and irksome covenants. …”.”

As I have said, there is evidence of lengthy calls between Mr Ersen and Mr Beckwith on 21 and 22 October 2024, i.e. the day before and the day of his asserting constructive dismissal.

As for issue 3, the respondents submit that it is not pleaded that the bonus claim was concocted, nor that Mr Ersen does not believe that he is owed the bonus, nor does Dare have any pleaded case that Onyx gave an indemnity or agreement to pay the amount of the bonus. Dare submits that Mr Ersen did not raise the bonus claim until the constructive dismissal allegation in October 2024, a year after the bonus was allegedly due, and six months after he had started discussions with Onyx.

As to issue 4, the respondents rely on Mr Beckwith’s evidence that no start date was agreed and submit that no start date was pleaded, not even as an inference. Dare submits that its case is that Mr Ersen is intending to go to Onyx before 28 October 2025 and that the documents sought would assist that case if they showed, as Dare believes that they will, that he intended to start with Onyx as soon as possible.

As to issue 5, the respondents submit that paragraphs 50 to 55 of the particulars of claim allege that only one employee was solicited by Mr Ersen, with no pleaded case that Onyx was involved and no pleaded case that Mr Ersen solicited brokers or counterparties, let alone that Onyx was involved. The respondents further submit that paragraph 55.2 of the particulars of claim concerns the remedy sought, not the cause of action.

As to issue 6, the respondents submit that paragraphs 45 to 49 of the particulars of claim concern failures to disclose wrongdoing by Mr Ersen, Mr Soliman, Mr Hikmet and a Mr Law, with no pleaded allegation that Onyx was involved in Mr Ersen’s wrongdoing or failure to disclose his or anyone else’s wrongdoing and no pleading that he failed to disclose an offer of employment.

Having considered all of those submissions, I turn to consider whether the relevance test is satisfied in respect of the four classes of documents sought. Class 1 consists of communications sent or received by each of the first to third respondents to or from Mr Ersen from 1 April 2024 to 30 November 2024. I note that no point is taken about the temporal limits in relation to this or any other class of documents. The classes all cover the period from the start of Mr Ersen’s discussions with Onyx to the month after he alleged constructive dismissal and either resigned or was dismissed. This class of documents is limited to communications between Mr Ersen and one or other of three named individuals: Mr Kayaam, Mr Newman and Mr Beckwith.

Having regard both to the evidence in this case and the findings in the Soliman/Hikmet proceedings, I consider that the documents in this class may well support Dare’s case or adversely affect Mr Ersen’s case in one or more of the ways contended for by Dare. Having regard to the principles set out in paragraph 38 of the judgment in Three Rivers, I consider that this is the case in relation to all of the documents in this class, although I recognise that it may prove, once they are produced, that some of them do not in fact assist Dare’s case. By way of example, it may well be that the content of Mr Beckwith’s communications with Mr Ersen was similar to the content of his communications with Mr Hikmet and Mr Soliman. So, for example, if Mr Beckwith sent a message to Mr Ersen telling him what to say to his doctor, as he did with Mr Hikmet, that would assist Dare’s case on issue 1. It would be evidence which supported Dare’s pleaded case on the issue whether Mr Ersen made a false claim to be sick. I do not consider that it is necessary for the purpose of the relevance test for Dare to have pleaded that Onyx encouraged Mr Ersen to make a false claim.

I note from the messages which have been disclosed and which are dated 13 June 2024 that even messages which merely concern arranging a meeting are capable of assisting Dare’s case. This, in my judgment, is an application of the fourth principle stated in paragraph 38 of the judgment in Three Rivers.

I do not consider that it is inappropriate for this class to be defined by reference to communications rather than, say, limited to WhatsApp messages. I note in that respect that Mr Beckwith communicated with Mr Hikmet and Mr Soliman by email. He has not said in his statement that he did not communicate with Mr Ersen by email. In any event, if he did not communicate with Mr Ersen by email, then there are no emails in this class.

On a related point, the respondents complain about paragraph 3 of the order, but Dare submits that that paragraph merely spells out what will be implicit in an order to produce documents, given the many forms which documents or copies of documents can take, especially electronically, and that the wording of paragraph 3 merely reflects the contents of paragraph 2 of Practice Direction 57AD. I agree with Dare’s submission. I will deal separately with the question whether compliance with the order would be oppressive.

The respondents contend, in effect, that the only documents in this class are:

However, having regard to the deletion of WhatsApp messages by both Mr Ersen and Mr Beckwith in this case and the deletion of emails by Mr Hikmet at Mr Beckwith’s instigation in the other case and to what are said to be gaps in the disclosure given by Mr Ersen, I consider that it may well be that this class of documents is larger than the respondents contend.

I can see, however, that it may be appropriate to exclude from this class of documents communications which have already been disclosed by Mr Ersen. I will, if necessary, hear further argument on that point.

Class 1(b) is as follows:

“Communications between (including between each of them) any of the First to Third Respondents and any other officer, employee or agent of any Onyx entity (including Axis Limited) in respect of Mr Ersen’s recruitment/prospective recruitment by Onyx (including Axis Limited) from 1 March 2024 to 30 November 2024.”

This class is also limited, in that it only applies to communications sent or received by one of Mr Kayaam, Mr Newman or Mr Beckwith and it only applies to communications in respect of Mr Ersen’s recruitment or prospective recruitment. Again, I consider that the documents in this class may well support Dare’s case or adversely affect Mr Ersen’s case in one or more of the ways contended for by Dare. It may well be that the documents in this class provide evidence of what was said to Mr Ersen which, in turn, may well support Dare’s case or adversely affect Mr Ersen’s case in one or more of the ways contended for by Dare.

The respondents submit, in effect, that Dare has produced no evidence that there were any documents in this class. Of course, these are communications internal to Onyx. Consequently, Mr Ersen has not disclosed any such communications and will not do so and Dare does not have access to them, but it is clear that the individuals who dealt with Mr Ersen will have had communications with others in Onyx about the recruitment or potential recruitment of Mr Ersen. Indeed, Mr Beckwith has acknowledged that he would have spoken to George Lucas about recruitment. There is no reason to assume that those communications were purely oral. I note that Mr Beckwith has not said that they were purely oral.

Class 2(a) consists of communications sent or received by any Onyx entity (including Axis Limited) or any of their officers, employees or agents to or from Mr Ersen (or his agents) from 1 April 2024 to 30 November 2024. This again is a limited class of documents. It is unlikely that large numbers of Onyx personnel or agents communicated with Mr Ersen during the relevant period, although it may well have been that there were communications with Mr Ersen by more than just the three individual respondents. Mr Ersen himself was expecting as at 13 June 2024 to hear from Onyx’s lawyers and six weeks later his statement on 22 July 2024 that he was heading to Dubai gave the impression that his discussions with Onyx were still progressing.

Again, I consider that the documents in this class may well support Dare’s case or adversely affect Mr Ersen’s case in one or more of the ways contended for by Dare. For instance, on 13 June 2024 Mr Ersen was expecting to receive contracts, as I have said. Any contracts he was sent, even in draft, may well support Dare’s case.

The respondents complain about the reference to agents in this class of documents, but Mr Ersen’s reference to lawyers explains why it is appropriate to include agents.

Class 2(b) consists of communications between any Onyx entity and/or any officers, employees or agents of any Onyx entity (including Axis Limited) in respect of Mr Ersen’s recruitment/prospective recruitment by Onyx (including Axis Limited) from 1 March 2024 to 30 November 2024. This is a much wider class than the other three. It includes communications between anyone within Onyx or its agents and anyone else within Onyx or its agents. Any information contained in such communications would at best be second-hand evidence of what was said to Mr Ersen and could be more removed than that from the interface between Mr Ersen and Onyx. In those circumstances, while this class may well contain documents which meet the relevance test, I am not satisfied that all of the documents in this class meet the relevance test.

I turn now to the necessity test. It has been said that the concept of necessity is to be interpreted in a flexible way in the light of all the circumstances: see Sarayiah v Royal and Sun Alliance [2018] EWHC 3437 (Ch) at paragraph 56, per Barling J. I consider that the disclosure of the documents in classes 1(a), 1(b) and 2(a) is necessary in order to dispose fairly of the claim. I have found that these classes of documents may well assist Dare’s case in a trial which is due to start in just under three weeks. The documents in class 1(b) in particular can only be obtained by way of this application. The documents in classes 1(a) and 2(a) appear to be unlikely to be disclosed by Mr Ersen, who has already purported to give disclosure on three occasions and who has said that he has disclosed everything there is to be disclosed. In any event, the trial is so close that it would not be practical to wait and see what else he may disclose. The documents in class 1(b) are particularly important because of the deletion of WhatsApp messages both by Mr Ersen and by Mr Beckwith and because many communications with Mr Ersen were by telephone.

The respondents submit that the order would be oppressive, whereas the documents sought are not central to the case, and that the order would breach their privilege and their confidentiality. However, privilege and confidentiality are catered for by CPR 31.17. It may be, as Mr Sethi suggested, that a communication with Mr Ersen included discussion of Onyx’s plans for developing its business in Dubai. In themselves, those plans may well not be relevant to the issues in this action, but it will be open to Onyx to object to production of part or all of a document on confidentiality grounds.

As for the allegedly oppressive nature of the order, I note that classes 1(a) and 1(b) concern communications sent or received within the last year by three individuals in relation to a significant issue: the recruitment of a senior employee. The individual respondents are likely to know who they communicated with and how. There is no evidence from them that it would be particularly difficult to search the appropriate records of their communications. Class 2(a) also concerns a limited number of individuals.

The respondents’ submissions about paragraph 3 of the order are relevant here, although I agree with Dare’s submission that a distinction should be drawn between the question of what documents fall within a class and the question of what are the potential repositories of those documents. Having said that, I accept that the respondents will be concerned to ensure that all proper searches are made for copies of the documents falling within the three classes, since they will be responding to a court order, and I accept that this will not be an insignificant exercise, albeit one carried out at Dare’s expense. In all the circumstances, I do not consider that the order would be oppressive and I consider that the potential significance of these three classes of documents in a case of this nature is such as to justify the effort involved in obtaining them.

Dare submits that the touchstone of the exercise of my discretion should be the administration of justice. The matters relied on by the respondents in arguing that I should, in the exercise of my discretion, decline to make the orders sought included, principally, Onyx’s interest in protecting commercially sensitive information, especially in the context where Dare and Onyx are competitors, and the allegedly oppressive nature of the order. I have already dealt with these matters in the context of the necessity test and need not repeat what I have said about them.

In all the circumstances, I consider that the appropriate exercise of my discretion in this case is to order production of the documents in classes 1(a), 1(b) and 2(a).

I will make the order sought, save for paragraph 2(b) and save that I will hear submissions as to whether I should exclude from paragraph 1(a) documents which have been disclosed by Mr Ersen and I will also hear submissions on the time for compliance and any other practical issues.

Finally, I express my gratitude to all solicitors and counsel involved for the clear manner in which both documents and submissions were presented in Tuesday’s hearing, which has been of considerable assistance to me.

In my judgment, this is an exceptional case for a number of reasons. First, I have got very much in mind paragraph 11 of Sheldon J’s judgment, in which he found that Mr Hikmet had deleted emails at the request of Mr Beckwith and that this was presumably done so as to conceal Mr Beckwith’s involvement in that correspondence if litigation did transpire. The second point is that the occasion for this application was the deletion of WhatsApp messages by Mr Ersen and, on the making of this application, the third point, it came to light that the same WhatsApp messages had been deleted by Mr Beckwith. Fourthly, in the background to all of this, there is, of course, the allegation, which may prove to have nothing to it, but which is certainly there at the moment, that the respondents to this application are effectively standing behind Mr Ersen and giving him an indemnity and I remind myself of what Jack J said about indemnities, which I referred to in my judgment.

Those in my judgment are sufficiently exceptional factors to make it appropriate in this case to reserve both the costs of the application and the costs of compliance with the order. It is not suggested to me that that will prevent the order being complied with, but I am concerned in the light of those exceptional circumstances that there may be matters that come out as a result of compliance with the order and/or events at trial which would be material to the exercise of the court’s discretion in relation to those costs.

I am not going to grant permission to appeal, largely for the reasons set out in my judgment.