Disclosure – challenging claims to privilege and targeted enquiries

In Saudi Arabian Airlines Corporation v International Airfinance Corporation & Ors [2026] EWHC 2326 (Comm), the Commercial Court held that the absence of documents supporting a party's case does not, without more, justify questioning its opponent's disclosure or privilege review. A challenge requires an objective foundation, and any further exercise must also be reasonable and proportionate, particularly as trial approaches.

Background 

Six months after disclosure and only three months before a five week trial, the claimant sought further disclosure concerning claims arising from aircraft leases for 49 aircraft. It argued that the "surprising and critical" absence of documents relating to the defendants' alleged strategy suggested that relevant material might have been withheld as privileged. Among other measures, it sought further particulars concerning approximately 1,200 documents over which privilege had been claimed (paragraphs 1 to 10 of the judgment).

A disclosure challenge needs more than a disappointing document return

Under paragraph 17 of PD 57AD, an applicant must first show that there may have been a failure adequately to comply with an Extended Disclosure order (see Invest Bank PSC v El-Husseini [2024] EWHC 996 (Comm). General suspicion is insufficient (see Crane Bank v DFCU Bank [2026] EWHC 522 (Comm). Although non-compliance may sometimes be inferred where documents of a particular type obviously must exist, following a detailed disclosure exercise, speculation that further documents ought to exist will not suffice (paragraphs 11–12). 

The court rejected the privilege challenge as a "logical non sequitur". The absence of documents supporting the claimant's alleged strategy did not justify an inference that privilege had been improperly claimed. There was no evidence of an inadequate review; indeed, communications involving the defendants' general counsel had been disclosed where the dominant purpose test was not met, suggesting that the review had been conscientiously undertaken (by way of reminder - the dominant purpose test asks what the main purpose of creating the document or communication was. If its main purpose was a privileged legal purpose, such as obtaining legal advice or preparing for litigation, it may be protected by privilege) (paragraph 14 of the judgment). 

The court also confirmed that there is no procedural requirement to identify in the disclosure schedule the particular head of legal professional privilege relied on for each document or class of documents. The absence of that information did not suggest that the privilege review had been improperly conducted (paragraph 15 of the judgment). 

Proportionality may be decisive, particularly as trial approaches

Even where paragraph 17 is engaged, any further order must be reasonable and proportionate, applying the factors in paragraph 6.4 of PD 57AD (paragraph 11 of judgment). Here, re-reviewing approximately 1,200 documents was estimated by the Defendant to cost £50,000 and divert a member of the defendants' legal team from trial preparation. The Defendant had already incurred around £1.2m costs for disclosure.  In the circumstances, and without an objective basis for questioning the privilege review, the court refused the relief sought (paragraphs 9 as well as at 13–16). 

Documents held by consultants are not automatically within a party's control

Documents held by an arm's-length consultant are not necessarily within the appointing party's control: that depends on the express or implied terms of the engagement (paragraphs 32-34 of judgment). However, the newly introduced paragraph 18.5 of PD 57AD permits the court to require a party to request potentially relevant documents from a third party, subject to reasonableness and proportionality.

Here, the consultant's correspondence was sufficiently ambiguous to justify asking whether he retained notes recording instructions or conversations relevant to the alleged strategy. The court therefore ordered a targeted enquiry, for the defendant to write to the consultant asking whether he had kept notes, and to provide a summary of his response. The court recognized that it could not order the consultant to disclose his own papers, but it would be possible for the claimant to apply for third-party disclosure and/or possibly for a witness summons (paragraphs 35-37 of judgment).

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