When Are Documents Held By A Third Party Within A Litigant's "Practical Control"?

In The Public Institution for Social Security v Al-Wazzan & Ors [2024] EWHC 480 (Comm) the Commercial Court was asked to make an order requiring the claimant to disclose documents held by third parties. The decision is a useful reminder that, in certain circumstances, a litigant can be considered to have control over documents held by a third party even where the litigant has no legal right to those documents; such documents as are within the litigant's "practical control" may, in principle, fall to be disclosed. However, as illustrated by this case, in practice it may not be easy to establish such circumstances.

Control over documents

A party to litigation is required to disclose relevant documents within the party's control. Where a party has physical possession of the documents or a legal right to obtain access to documents held by a third party then "control" is often straightforward. However, several cases in recent years have established that even where the