I cannot remember when I last read a judgment whose subject matter included questions about whether certain documents could be said to be in the “control” of another for the purposes of disclosure. Two such judgments have come my way today.
This was not the central issue in Phaestos Ltd & Anor v Ho  EWHC 668 (TCC) (16 March 2012), which I wrote about here, but arguments about the control of documents were one of the reasons for the disclosure delays which were the subject of the judgment. The judge in that case ordered that a witness statement be made supporting the contention that certain documents were not in the control of the party giving disclosure.
North Shore Ventures Ltd v Anstead Holdings Inc  EWCA Civ 11 (18 January 2012) is a part one of those long-running sagas resembling War and Peace, both in its narrative spread and in its country of origin. More than one judgment turns up when you search for the names of the parties. My link is to a Court of Appeal judgment in which, on the facts before them, the court upheld the judge’s conclusion that documents in the hands of a trust remained in the control of the Appellants and were therefore liable to be produced.
The court was at pains to emphasise that these arguments appear in many guises, including those relating to the separate identity of a limited company as well as to that of a trust. It was not “either necessary or possible to give a cut and dried answer to the question whether and when a court may make an order” of the kind sought, and “in deciding whether to order disclosure, a court may have to balance competing interests of different beneficiaries, the trustees and third parties. Disclosure may have to be limited and safeguards may have to be put in place.”