Disclosure – Can you request documents mentioned in evidence that are held by a third party?

In the case of McLaren Indy LLC and another v Alpa Racing USA LLC & Ors  [2025] EWHC 1825 (Comm) the court determined that it did not have jurisdiction under the disclosure rules of the Business and Property Courts (PD57AD) to order a Defendant to seek disclosure from a third party of documents mentioned in a witness statement over which it had no control.

The key points are:

• The Defendants produced a witness statement which referred to sponsorship agreements and the Claimant argued for their disclosure under PD57AD because they were relevant to one of the issues to be determined at trial and had been mentioned in the witness evidence;
• The Court considered whether the documents in the witness statement were ‘mentioned’, namely that they had been ‘referred to, cited in whole or in part of there is a direct allusion to it’ (see PD57AD paragraph 21.3). 
• The Court determined that two references were too general to constitute being ‘mentioned’. However, for the document which was sufficiently mentioned, the Court held that it did not have jurisdiction to order its disclosure because it was held by a third party and the Claimants had not shown that the Defendants had control of the document. 
• Further, the appropriate route for an order for disclosure against a third party is CPR 31.17 (retained in PD57AD) and this was left open as a possible route for the document’s production in this case.

For more information about the law, technology and practice of disclosure, contact Tom Whittaker, Stacie Bourton, or David Hine.

This article was written by Beth Bosson.