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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Constantin Medien AG v Ecclestone & Ors [2013] EWHC 2674 (Ch) (22 July 2013) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2013/2674.html Cite as: [2013] EWHC 2674 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		The Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL Monday, 22 July 2013

MR JUSTICE VOS:

Introduction

1. In this action, Constantin Medien AG (Constantin or the claimant) claims that Bayerische Landesbank (BLB) was induced by a bribe of some US$44 million (the payments) allegedly paid by Mr Bernard Ecclestone (Mr Ecclestone or the first defendant) and Bambino Holdings Limited (Bambino or the third defendant) to Dr Gerhard Gribkowsky (Dr Gribkowsky) to sell in late 2005 its 46.65 per cent stake in the F1 Group (FOG) for some US$828 million to a partnership run by CVC Capital Partners Limited (R9 or CVC) at an undervalue (the transaction). The transaction took place through Alpha Prema UK Limited (R4) and was, as I understand the position, completed on 31 March 2006.
2. It is alleged that Dr Gribkowsky was the Chief Risk Officer and a director of BLB at the relevant time and was responsible for matters relating to the sale of BLB's shares in FOG. Constantin claims also that, if BLB's stake had been sold at full value, it would have received a payment under certain sell-on rights that it held against BLB. It was, it says, entitled to 5 per cent of any proceeds that were recovered between US$1.0574 billion and US$1.1196 billion and to 10 per cent of any recovery over that latter figure.
3. Constantin's claims are brought under the German Civil Code including, in particular, section 826, which provides in part that:

"A person who, in a manner contrary to public policy, intentionally inflicts damage on another person is liable to the other person to make compensation for the damage."

4. Constantin alleges that the defendants knew of its interest in the sale price but that such knowledge, if it existed (as it is alleged to do) is not a necessary ingredient of its claim. Moreover, Constantin relies in support of its higher valuation of FOG on a refinancing which was concluded by CVC in late 2006 and completed in April 2007, implying what is said to be a strikingly higher valuation for FOG (the refinancing).
5. The defendants deny the alleged bribe, saying that the payments were made in response to threats by Dr Gribkowsky that he would create difficulties with the UK tax authorities concerning Mr Ecclestone's wife's (Mrs Ecclestone) trust arrangements with Bambino.
6. The defendants also contend that FOG was sold at its market value under the transaction, relying on developments in the FOG business after the transaction, including progress with what is known as the Concorde Agreement, which provides the terms on which Formula One teams participate in the Formula One Championship.
7. There are a number of applications by Constantin before me as follows: (1) an application for further disclosure against Mr Ecclestone under part 31.12 of the CPR, (2) an application for non-party disclosure against the CVC respondents (R4 and R9) under part 31.17 of the CPR, (3) an application for non-party disclosure against the FOG respondents (R5, R6, R7 and R8), also under part 31.17 of the CPR, (4) an application for an order for simultaneous exchange rather than sequential service of expert valuation evidence, and (5) an order permitting Constantin to call as a witness Mr Donald Mackenzie of CVC for cross-examination, pursuant to CPR part 33.5.
8. Mr Mackenzie has made statements in German proceedings which were the subject of Civil Evidence Act notices served by both Constantin and the defendants. In the course of the hearing before me, however, Constantin, through its leading counsel, Mr Philip Marshall QC, withdrew its Civil Evidence Act notice in respect of Mr Mackenzie's evidence.
9. In addition to those five matters, there is also before me an application by Bambino for an order requiring Constantin's expert evidence to be served within seven days, failing which Constantin should be debarred from relying upon expert evidence at all. The trial of this action is presently listed for a period of between 20 and 25 days to come on on 7 October 2013, i.e. in a little over two months' time, when the whole of August and September are, of course, taken up with the long vacation.
10. Accordingly, when the hearing before me began on Wednesday 18 July 2013 (this is for one day's hearing and one day's reading, which had of course already taken place before Wednesday 18 July 2013) I inquired how long the parties thought the applications would, in fact, take and I expressed the preliminary view that if all the disclosure sought were to be ordered the trial date would, in practice, inevitably be lost.
11. I said that the evidence seemed to me to show that the scale of documentation required a fairly major exercise that seemed most unlikely to be taken to a conclusion in a couple of weeks in the long vacation, and that third parties could not be forced to act, effectively, at break-neck speed.
12. I asked Mr Marshall whether his client, Constantin, wanted to pursue its applications for disclosure if it knew that doing so would be likely to mean that the trial would go off. I also told the parties that I had inquired of the Clerk of the Lists and established that it was inevitable if the trial did go off that it would not be relisted until late 2014 or early 2015. Mr Marshall responded by saying, on instructions last Wednesday, that his client nonetheless wished to proceed with the applications and would, if its applications were successful, accept that the trial should be adjourned. There have been further developments since then, to which I shall allude in a moment, which also have an effect on the prospective trial but, for the moment, suffice it to say that Mr Marshall also told me this morning, having considered the comments that were made on the last occasion, that his clients now take the view that 20 to 25 days is not an adequate estimate for this trial.
13. The defendants, on the other hand, took and take a diametrically-opposed view to that put forward by Constantin: they submit that Constantin has been guilty of wholly unreasonable delay in bringing its applications forward, that Constantin has known since December 2012 that the defendants were refusing to disclose documents belonging to FOG (and indeed to CVC) and it should, therefore, have applied at once if it wanted the disclosure now sought for a trial, long fixed to start in October 2013. The matter, say the defendants, has been hanging over their heads for years now. They are mostly individuals, and it is time for it to be resolved.
14. In the circumstances, I said before the argument began that I would decide nothing before hearing submissions, but that I wanted submissions on all issues from all counsel. It turned out that the estimate of one day plus one day's reading should have been two days plus one day's reading and, accordingly, I allocated today, Monday 22 July 2013, in place of the one-day pre-trial review that had been fixed for 29 July 2013 and I said that I would deal with all pre-trial matters if I formed the ultimate view that the trial could or should be retained.
15. Against that background, I shall now set out a brief chronology of matters that are relevant to the applications that I need to determine.

Chronological background

16. On 29 July 2011, Constantin filed its claim form. I shall not seek to set out the detail of the claim that is made in that document but it is perhaps important, in the light of the argument concerning the documents that are sought by way of disclosure, that I recite paragraphs 52 and 53 of the Particulars of Claim as follows:

"52. The sale of the [BLB] Holding to CVC was not preceded by the process of valuation and marketing that would normally precede the entry by a bank into a transaction of this kind. In particular, the steps that would have been normal for a bank in [BLB's] position to take would have included (a) the obtaining of a professional valuation, (b) the mandating of an investment bank or other professional advisor, and (c) the making of approaches to other potential buyers. None of these steps was taken by Dr Gribkowsky who instead excluded even [BLB's] own legal and mergers and acquisitions departments from the sale process.

53. The proceeds received by [BLB] were substantially lower than prior and subsequent indications as to the price [BLB] could reasonably have been expected to receive upon an arms' length sale after proper analysis and investigation. Moreover, the sale conflicted with [BLB's] previously stated policy of retaining [BLB's] holding at least until 2007. In particular:

53.1. In October 2001, KPMG valued SLEC at DM 7.696 billion, the then equivalent to approximately $4.59 billion, implying a value of $2.11 billion for the [BLB] Holding on a pro rata basis (in other words, ignoring any premium for the level of control conferred by the investment);

53.2. In March 2002, JP Morgan Chase & Co valued SLEC on a discounted cash flow basis at $3.35 billion, implying a value of approximately $1.56 billion for the [BLB] Holding on a pro rata basis;

53.3. As reported in the German Financial Times on 6 May 2002, Mr Werner Schmidt, the then Chief Executive Officer and Chairman of the Board of Management of [BLB] considered that in total Formula One was worth between EUR 4 and 5 billion, implying a value of about $1.7 billion to $2.2 billion for the [BLB] Holding on a pro rata basis; Mr Schmidt also commented that the profit generated by Formula One was $300 million per annum;

53.4. In December 2004, Dr Gribkowsky gave an interview to the news magazine, Der Spiegel, during which he made the following comments regarding [BLB's] intentions with respect to the [BLB] Holding: 'The profit gained from marketing Formula One adds up to around $300 million, not least because Formula One is constantly tapping into new markets ...'

53.5 In 2006 and 2007 refinancing transactions took place, pursuant to which about $3 billion was raised, allowing the complete return of the funds originally invested by Delta Topco, together with a dividend of approximately $1 billion. In addition, SLEC was able to pay a sum in the region of $300 - $350 million to acquire Allsport Management SA, a Swiss registered company that manages Formula One trackside investments and VIP hospitality. The cash return alone from this refinancing was greater than the value implied by the sum received in 2005 for the [BLB] Holding. An approximate valuation based on a multiple of three times revenue would suggest a value of approximately $6 billion for SLEC and $2.8 billion for the [BLB] Holding."

17. On 4 November 2011, Mr Ecclestone filed his defence to the Particulars of Claim. Again, I do not need to set out the entirety of what he pleaded, which is very extensive, but it is important in the light of the argument for me to refer to one or two specific paragraphs as follows:

"1. ... the sale [the transaction] was manifestly for full value, was rightly considered an excellent deal by [BLB] at the time, and the appropriateness of the price has been confirmed by a recent external review conducted by that bank ...

7. ... (b) The sale to Alpha Prema [R4] of the [BLB] Holding was at a full and fair value (as [BLB] concluded both at the time and subsequently) and was considered in detail and approved by [BLB's] management board and supervisory board ...

47. Each of JP Morgan and Lehman Brothers waived their rights of pre-emption over Speed. It was open to those banks to have purchased the [BLB] Holding at the price offered by CVC, but each of them chose not to ...

48. Accordingly, although the claimant now contends that the price achieved by [BLB] represented a substantial undervalue: (a) neither JP Morgan nor Lehman Brothers (each of whom, by virtue of their shareholding, had a good understanding of the asset and its value) had any interest in acquiring the [BLB] Holding at that price ...

51. ... Mr Ecclestone had no such wish, as alleged. Moreover: (a) There was nothing abnormal in the marketing, valuation or negotiation process, given the nature of the asset and the circumstances ... (b) The marketing or negotiation process carried out by [BLB] was appropriate and reasonable and resulted in full value being achieved: (i) The price achieved was as much as CVC would offer. It greatly exceeded their original indication and was itself one which banks were unwilling to fund, such that the amount of debt funding that could be obtained was relatively small ... (vii) [BLB] had recently commissioned an external review of the sale by Deloitte, which also found that the price achieved was appropriate (albeit that it had underestimated the impact of both the risks of the Concorde Agreement not being extended and the need for Bambino Holdings and Mr Ecclestone respectively to participate and co-operate in any favourable sale) ...

61. ... the process adopted by [BLB] was appropriate in all the circumstances, especially having regard to the factors identified in paragraph 43 above, and led to a realisation of the asset for full value. To the extent that the bank did not require further steps of the kind identified in paragraph 52, this was an understandable and reasonable decision on the part of the bank and one that the board was fully cognisant of ... [BLB] were also professionally advised (by Stephenson Harwood) in relation to the transaction. The allegation of exclusion of particular bank departments or personnel is not admitted, nor is there any inference the Claimant seeks to draw from such a course ...

62.: (a) ... the amount realised far exceeded all previous offers. It also exceeded both book value and internal valuations that [BLB] had made. The amount received was considered highly satisfactory at each level within [BLB], and in particular, by the bankers dealing with the asset, by the management board, and by the supervisory board ... (b) ... by April 2005 the strategic view of [BLB] was that it wanted to sell the asset if it could do so at an acceptable price. (c) ... the valuation from KPMG was not based on information from Mr Ecclestone and his executive management team ... (i) ... save that a refinancing took place in November 2006. This refinancing was made possible because of the successful management of key risks in the business. In particular: (i) Beta Topco 1 Ltd, a company incorporated in Jersey, purchased Allsport Management S.A. and the business undertaken by the APM group of companies, being the business handling advertising, sponsorship and hospitality in relation to Formula One. One of the attractions for [BLB] of the sale to Alpha Prema had been that the bank did not have to undertake the financial commitment and risk of committing to the purchase of APM's business. (ii) In the event that the purchase was a success and addressed a key demand from the manufacturer-led teams, leading to them abandoning their break-away plans. Those teams sought an enlarged prize fund which included revenues from the APM and Allsport businesses. (iii) In June 2006, the manufacturer-led teams signed a non-binding MoU whereby they agreed to abandon their preparations for a rival series and to commit to compete in Formula One until the end of 2012. (iv) The resulting increase in stability enabled the refinancing, albeit that significant risks remained in the business, and it was not until August 2009 that the non-binding 2006 MoU was converted to a binding contract (and even then only after further threats from the teams in 2009 to leave Formula One and start their own alternative series)."

18. The claimants contend that these pleadings clearly raise issues in the action as to (1) whether BLB's holding in FOG was sold at full value, (2) whether an appropriate sales process was adopted, and (3) matters external to BLB, both before and after the sale, which had a bearing on the true value of the interest sold, including the refinancing transaction.
19. Continuing then with the chronology: on 20 December 2011, judgment was entered, as I understand it, against Dr Gribkowsky, who was previously the fourth defendant in the proceedings. On 2 July 2012, Newey J gave directions for the trial, including directions for expert evidence to be filed sequentially, with the claimant filing evidence first on both German law and on valuation on 7 June 2013.
20. On 4 October 2012, Dr Gribkowsky was sentenced to 8½ years' imprisonment by District Court Munich 1, which said:

"The payments were made pursuant to an arrangement made in May 2005, to the effect that Dr Gribkowsky would be paid in return for exercising his influence on BLB's decision-making bodies, with the effect that BLB would sell its Formula One shareholding, in accordance with Mr Ecclestone's own wishes and interests."

21. On 21 December 2012, disclosure took place in these proceedings between the remaining parties. In his disclosure statement, Mr Ecclestone said this, and I quote:

"Formula One's offices: Delta Topco Limited and its subsidiaries together constitute the Formula One Group ('Formula One'). The headquarters of Formula One's main UK operating companies are at 6 Princes Gate, Knightsbridge, London, which is where my office has been located for the past 20 years. Although I keep some personal documents in Formula One's offices at 6 Princes Gate, most of the documents there belong to Formula One. Formula One also has a TV production facility at Biggin Hill in Kent, where some archived files are stored.

I am a director and the Chief Executive Officer of Delta Topco Limited, and also a director of several other companies in Formula One. I understand that in order to carry out my duties as a director I have certain rights to inspect documents held by those companies.

Formula One is aware of these proceedings and has told me, however, that those rights do not extend to a right to inspect documents held by those companies for other purposes. Specifically, I am told that I do not have the right to inspect or take copies of Formula One's documents for the purposes of proceedings to which I am a party in a personal capacity, as is the case in this instance. Consequently, Formula One has told me that it will not allow me to inspect or take copies of the documents for this litigation ...

Formula One has recognised that it would not be possible for me to comply with my disclosure obligations to carry out a search of the documents to which I am entitled, if documents in Formula One's offices could not be searched to ascertain which documents were my own. Formula One therefore agreed to assist me in locating my personal documents, so that they could be reviewed for relevance for the purposes of disclosure. Formula One's position is that I am only allowed to inspect Formula One documents for the sole purpose of ascertaining which documents are my own. I have not been permitted to inspect Formula One documents generally, nor am I permitted to take copies of Formula One documents.

Sacha Woodward-Hill, who is a director of several companies in Formula One and Formula One's chief legal officer, and who is assisting me personally in relation to these proceedings, searched all locations within Formula One's offices where documents potentially relevant to these proceedings might be held ...

Ms Woodward Hill collated all potentially relevant documents from Formula One's files and archives by reference to date range. I understand from Ms Woodward Hill that she did not exercise any discretion or filter the documents which were identified as potentially relevant in any way. Formula One's solicitors, Freshfields Bruckhaus Deringer LLP ... took possession of the results of Ms Woodward Hill's search.

My solicitors, Herbert Smith Freehills LLP ... were permitted to attend Freshfields' offices to examine the documents found by Ms Woodward Hill, to ascertain which documents they considered to be mine personally."

22. On 13 April 2012 Herbert Smith Freehills, acting for Mr Ecclestone, wrote to Peters & Peters, solicitors for Constantin, saying the documents belonging to FOG companies, of which Mr Ecclestone was a director, were not documents in Mr Ecclestone's control for the purposes of disclosure in this litigation.
23. On 9 May 2013, Peters & Peters wrote to Herbert Smith Freehills and also to the solicitors for the second and third defendants seeking 20 substantial categories of further disclosure. I shall not set out the categories sought at that stage, since they have changed quite considerably since that initial letter.
24. On 13 May 2013, witness statements were exchanged between the parties in this action in preparation for the trial due to commence in October. Mr Ecclestone served statements both for himself and also from a Mr Duncan Llowarch, the Chief Financial Officer of the FOG companies (Mr Llowarch). These statements concern the value of the FOG companies before and after the transaction. Mr Llowarch's statement included a number of highly relevant passages on which the claimants place particular reliance in making this application for disclosure. Accordingly, it is necessary for me to cite some short parts of that statement as follows:

"91. CVCL completed their financial due diligence within around a 10-day period ... Essentially, for the purposes of this financial due diligence, CVCL reviewed the financial models which I had prepared addressing the various possible scenarios ... compared them with the underlying contracts that were in place, and considered the assumptions that underpinned the models ...

92. ... the speed of the due diligence was also assisted by the fact that the Transactions Support Team at EY [Ernst & Young] already had a good understanding of the Group's business, and could quickly access EY's audit files to verify the terms of most of the Group's 50 or so material contracts which underpinned its financial results ...

113. The acquisition of APM and ASM, combined with the commitment of CVCL to support Mr Ecclestone and the Group's management team and in our attempts to reach a deal with the remaining teams and manufacturers, paved the way for a Memorandum of Understanding ('MOU') to be agreed with the GPMA-backed teams in May 2006. Under that MOU, the teams agreed to abandon their plans to establish a breakaway series, and also agreed to press on with the drafting of a new Concorde Agreement based on specific terms that were now settled ...

115. The signing of the MOU was a significant development. Although it was not a new Concorde Agreement and was expressed to be non-binding, for the first time the remaining teams and manufacturers had put pen to paper expressing a willingness to race and abandoning the idea of a breakaway. When taken with the binding agreements reached with Ferrari, Jordan and Red Bull in early 2005 (and subsequently with Williams, Super Aguri and Minardi), it meant that there was now some form of a commitment on paper on the part of all of the teams to race post 2007.

116. Once the MOU was signed, when combined with the positive developments which had followed CVC's involvement ... the dynamics became different. The direction of travel was now towards a new Concorde Agreement, and talk of a breakaway faded away for the moment ...

119. By November 2006 when the refinancing took place, the Group had also signed a new deal for a future race in Abu Dhabi, and was in the process of exploring and discussing several potentially lucrative new races in locations such as Korea, Valencia and Singapore. Review of the financial models show that, even with the core race promotion and TV contracts in place by mid-2006, the Group had some $3.2 billion of future 2007-12 revenue under contract, an amount of 40% higher than equivalent figures from August 2005. I am sure CVC would have flagged these developments to RBS."

25. On 14 May 2013, Constantin wrote to Freshfields Bruckhaus Deringer (Freshfields), acting for these CVC respondents, requesting disclosure of the first 14 categories of the documents sought on 9 May from the defendants from the CVC respondents. On 17 May 2013, Constantin wrote again to Freshfields acting for the FOG respondents, also requesting disclosure of the first 14 categories of the documents sought on 9 May from the defendants, this time from the FOG respondents. On 7 June 2013, Constantin's valuation evidence was due to be served.
26. On 10 June 2013, Bambino issued an application notice, as I have already indicated, seeking an order requiring Constantin to serve its expert evidence by 21 June 2013. On 11 June 2013, Constantin issued its application notices for disclosure against Mr Ecclestone and the CVC respondents and the FOG respondents. On 28 June 2013, Peters & Peters wrote to the defendants saying:

"... On further reflection, we consider that it is feasible for the trial of all issues to proceed notwithstanding the further steps that are necessary in regard to disclosure."

27. On 1 July 2013, Constantin issued a further application under part 31.17 against the CVC respondents seeking revised non-party disclosure against the CVC respondents in three particular categories. Also, on 1 July 2013, Constantin issued its application under CPR Part 33.4 to be permitted to cross-examine Mr Donald McKenzie. On 15 July 2013, Herbert Smith Freehills, on behalf of Ecclestone, wrote to Peters & Peters setting out the position as to the ownership and leases of the premises at 6 Princes Gate where Mr Ecclestone and the FOG companies have their offices. Herbert Smith Freehills wrote as follows:

"The building is owned by Pentbridge Properties Limited, which is wholly owned by our client. The ground floor to the fifth floor of the building comprises commercial office space. Pentbridge Properties Limited leases those floors to Pentbridge Services Limited (another company wholly owned by our client). Formula One Management Limited [R7] in turn sub-leases those floors from Pentbridge Services Limited and has exclusive occupation of them. Accordingly, our client is only entitled to enter the commercial premises because he is CEO of the Formula 1 Group. There is a residential property above the commercial premises, which is leased to our client. The residential property and the commercial premises have separate entrances, lifts and security arrangements."

28. The hearing before me began, as I have already said, on Wednesday, 17 July 2013. On Sunday, 21 July 2013 Freshfields, acting for all the respondents to the part 31.17 applications, wrote to Peters & Peters suggesting a resolution of the application for disclosure. They said:

"We have reviewed your client's application with our clients to identify such requests (or parts of requests). Consequently, our clients would not press their opposition to the disclosure of the specifically identified documents set out below (where copies of them are now able to be located), subject to the following terms: (i) the Court finding (or the Respondents agreeing) that each of those documents falls within the requirement of CPR 31.17(3)(a) and (b) and; (ii) the confidentiality of the documents being protected in the following manner: (I) these documents and any documents generated in the litigation that refer to their contents (such as expert reports), are subject to the existing 'confidentiality club' in place in this litigation, and the extension of that confidentiality club beyond the parties' lawyers and experts would require further order of the Court (if not consented to by our clients); and (II) appropriate steps are taken, in consultation with our clients, to protect the confidentiality of these documents, and any documents generated in the litigation that refer to their contents, if and when these are to be included in hearing bundles and/or referred to in open court."

29. I shall deal with the categories offered to be produced on those terms in due course. As regards timing however, Freshfields said that they could disclose certain of the documents within 14 days and others within six weeks, not including the month of August 2013. On Monday, 22 July, which is this morning, Mr Marshall rose at 10.30am to tell me that a schedule was in the course of preparation limiting the scope of the disclosure that was sought. I shall deal with the particular categories that are now sought, excluding those that are no longer sought, in due course.

I shall continue with this judgment at 2.00pm.

[short adjournment]

The Civil Procedure Rules

30. Part 31.17 of the CPR provides in part as follows:

"(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.

(2) The application must be supported by evidence.

(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 ..."

31. The notes at paragraph 31.17.1 of the White Book provide as follows:

"Before requiring a non-party who had no access to the pleadings or to such evidence as there might be to disclose a class of documents the court had to be satisfied (i) that there were documents falling within the specified class, and (ii) that those documents were—not might be—documents whose disclosure would support the case of the applicant or adversely affect the case of another party to the proceedings, Re Howglen Ltd [2001] 1 All E.R. 376. See further paras 25 ... 'The court has a clear obligation to ensure, if necessary of its own motion, that this intrusive jurisdiction is not used inappropriately even by consent. In exercising its responsibility, the court may well be assisted by submissions made on behalf of any third party the protection of whose interests requires to be considered.' per Eady J. at [29] Gary Flood v Times Newspapers Limited [2009] EWHC 411 (QB) ..."

32. Part 33.4 of the CPR provides as follows:

"(1) Where a party –

(a) proposes to rely on hearsay evidence; and

(b) does not propose to call the person who made the original statement to give oral evidence,

the court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.

(2) An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant."

33. The notes at paragraph 33.4.1 of the White Book provide in part as follows:

"In Tsavliris Russ (Worldwide Salvage & Towage) Ltd v RL Baron Shipping Co SA (The Green Opal) [2003] 1 Lloyd's Rep. 523, witness statements signed by a witness (Y) were served by the defendants (D) on the claimants (C). The statements contained opinion evidence and were accompanied by notices under r.33.2 indicating that D (1) intended to rely on the hearsay evidence contained in the statements but (2) did not intend to call Y to testify at the trial. However, after discussions between C and D, the trial began on the understanding that Y would be called by D to give evidence. Nevertheless, shortly afterwards D announced that they did not propose to call Y. C then applied under r.33.4 for permission to call and to cross-examine Y on his witness statements. Thereupon, D withdrew the witness statement from evidence. The Judge (Tomlinson J.) refused C's application holding that r.33.4 does not permit, because s.3 of the 1995 Act does not permit, the cross-examination by one party of a person upon whom the other party had indicated they proposed to rely where that person's statement is not in the event adduced in evidence. Although it was made clear at the outset of the trial that D intended to rely on Y's witness statements, they had not at that stage irrevocably adduced it or put it in evidence and adopted it as part of their case."

Issues

34. In my view the following issues arise for determination before me;

(1) Issue 1: Does Mr Ecclestone have physical possession of the documents of FOG such that he ought to be ordered to disclose them?

(2) Issue 2: If not, must a class of documents ordered to be disclosed under Part 31.17 be specifically identified in such a way that no exercise of judgment is required by the non-party as to what documents are or are not within the class of documents?

(3) Issue 3: Are the documents and classes of documents sought against (i) the CVC respondents and (ii) the FOG respondents sufficiently specified to be permissible under part 31.17?

(4) Issue 4: Are the documents sought against (i) CVC respondents and (ii) the FOG respondents likely to support Constantin's case or adversely affect the defendant's case?

(5) Issue 5: Is disclosure necessary to dispose fairly of the claim, or to save costs and should it be ordered as a matter of discretion?

(6) Issue 6: If disclosure would otherwise be ordered should it now be denied because to order it would inevitably involve a delay in the trial date?

Once I have dealt with the disclosure issues I shall turn to the other issues concerning the cross-examination of Mr McKenzie and his service of evidence.

Evidence in relation to disclosure

35. A huge amount of evidence has been filed in support of the application under Part 31.17 and in answer to it. The essential nature of that evidence is that Constantin, on the one hand, suggests that disclosure of the material is necessary to enable the court fairly to dispose of the matters at issue between the parties on the pleadings, and the respondents to the part 31.17 applications, on the other hand, have gone to great lengths to explain the difficulties that they would face in responding to any order based on the broad categories of documents sought, to which I will shortly return. I cannot unfortunately avoid referring to some of the evidence they have placed in the file, and even though it may seem that I am referring to quite a lot of evidence, it will be realised that I am only mentioning a tiny part of what the court has been burdened with.
36. I start then with the fourth witness statement of Mr Keith Oliver on behalf of Constantin which reads in part as follows:

"15. This application is principally concerned with the issue of quantum. Constantin believes, for reasons explained, below that it has not yet been provided with sufficient disclosure to enable a fair trial on that issue. Constantin's experts have identified a large number of further documents that they need to see before they can produce a proper opinion as to the price likely to have been achieved for the [BLB] Holding if a proper sales process had been followed. Furthermore, because of the Respondent's resistance to the provision of such documents and the time that will be required to analyse them and produce a report (followed by one or more reports from the Defendant's experts and meetings of experts) once the documents are disclosed, it is not practicable for the issue of quantum to be addressed at the forthcoming trial in October.

18. ... the witness statements filed for Mr Ecclestone include a statement from the Chief Financial Officer of the Formula One group of companies ('FOG') ... [Mr Llowarch] which contains a number of detailed factual allegations relevant to the value of FOG both before and after the date of the Transaction ... [Mr Ecclestone was employed for a period of time as the chief executive officer at FOG and as such has access to all documents held by the FOG]

25. I believe that the documents sought by this application are likely to support the Claimant's case or adversely affect the Defendants' case, and are necessary in order to dispose fairly of the action. In particular I believe that they are necessary for the following purposes:

a. To enable the experts to conduct a full and proper assessment of the value that could have been achieved for the [BLB] Holding if Dr Gribkowsky had not been bribed; and

(b) To enable the factual allegations made by the Defendants in relation to value, in particular in the witness statements of Mr Llowarch and Mr Ecclestone, to be placed in the context of the relevant documentary evidence and properly tested in cross examination.

39. The difference between the value implied by the Transaction and that implied by the Refinancing is striking ... Constantin estimated in its Particulars of Claim that the Refinancing implied a value of the business ... of about $6 billion ... Given the magnitude of the Refinancing ... it is reasonable to infer that the value underpinning the Refinancing received considerable scrutiny, both within the FOG and in communications between FOG, CVC and third parties.

40. ... (a) Bambino Holdings denies that the circumstances of the Refinancing 'provides any relevant indication of the value of the [BLB] Holding at the time of the sale to CVC' but without particularising in any alleged basis for this denial.

(b) Mr Ecclestone's Defence denies that the Refinancing provides a guide to the value of the [BLB] Holding at the time of the Transaction, but this denial is specifically made on the basis of changes that Mr Ecclestone alleges took place between the date of the Transaction and that of the Refinancing ... He pleads that the refinancing was 'made possible because of the successful management of key risks in the business' ... referring in particular to:

i. The acquisition by the FOG of APM and ASM;

ii. An increase in the stability of the business associated with the reduction of the threat by the participating motor racing teams to break away from Formula One and form a rival series to it.

45. It is clear from the matters set out above that it is not possible for a fair trial on the issue of quantum to take place without the further disclosure that is sought.

46. It will inevitably take some time for the Respondent to provide that disclosure, and it is obviously important that that exercise be conducted with care to ensure that relevant documents are not overlooked ... There is (by a very considerable margin) insufficient time for all these steps to be taken in time for the issue of quantum to be addressed at the scheduled trial in October ..."

37. Mr Oliver then prepared his second statement in relation to these matters (his fifth statement overall) on 28 June 2013 in which he exhibited a letter from Ms Diane Hughes, the claimant's valuation expert in these proceedings, in which Ms Hughes set out the reasons why she thinks that the disclosure sought by Constantin was necessary in order to enable her to deal properly with the issues of value that arise in this case. I do not intend to set out in detail the lengthy letter prepared by Ms Diane Hughes of Zolfo Cooper dated 28 June 2013. Suffice it to say however, that her thesis is that she needs many of the documents that are referred to by Constantin in order to ensure the accuracy of the valuation report that she intends to produce. She concludes her letter by saying this:

"It should be apparent from what I have said above that the information sought is fundamental to my assessment of value. If I were to produce a report on the information currently available to me, it would necessarily have to be based on unverifiable assumptions regarding the matters that could be more reliably assessed with the information requested, and consequently it would have to express a wide range of possible values. The supplemental report produced after the requested further disclosure had been provided would substantially replace the original report, and would involve a considerable duplication of effort by myself and my firm with the consequent impact on the level of the costs ..."

38. Mr Geoff Nicholas of Freshfields produced his fifth statement in answer to the claimant's applications under part 31.17 on 9 July 2013. Mr Nicholas' statement runs to more than 77 pages including his annexure. Again, I shall only refer to small parts of that statement as follows:

"19. ... I should address Mr Oliver's assertion that 'Mr Ecclestone has no difficulty obtaining access to confidential information relating to FOG when it suits him' ... If it is being suggested that, if the First Defendant were advancing the present application, the [FOG] would not object, then that suggestion is false. The [FOG's] position does not depend on the identity of the party making the application but rather on the fact that the application is intrusive, enormously burdensome and unjustified, and is not an appropriate application to make against a non-party to the litigation.

20. Leading up to Constantin's current application for non-party disclosure, the Respondents have had to deal with constantly changing requests from Constantin, all of them seeking broadly described categories of documents, disclosure of which would have imposed a very heavy burden on the Respondents ...

29. The Respondents' position in summary is that, whilst they have no interest or involvement in the litigation, they are willing to provide documents to the parties to the litigation, provided the requests are specific, not unduly burdensome, can be justified on the basis of their relevance to the litigation, and that the proper account is taken from the fact that many of the requested documents are commercially sensitive and confidential. (The fact that Constantin and the [FOG] are competitors, and other matters referred to in Mr Clarry's witness statement ... make the disclosure of commercially sensitive material to them a matter of particular concern.)

30. For the reasons explained below, the Respondents object to Constantin's current requests because (i) they are not properly formulated for the purposes of the request for non-party disclosure ... (ii) they would require the Respondents to undertake an enormous disclosure exercise at great expense, which would take significantly longer to complete in the wholly unrealistic time provided for in the Revised Draft Order; (iii) such production would require the disclosure of a significant volume of commercially sensitive and confidential documents; and (iv) many of the requested documents appear ... to be of minimal, if any, importance to the issues in the litigation ...

36. ... I am instructed that, as regards hard copy documents of the [FOG] there are boxes of files and other loose lever arch files at the [FOG] Princes Gate offices. Just taking those of the legal department and of the First Defendant (excluding his personal files), these comprise over 130 boxes and 380 lever arch files. Further, at the Biggin Hill facility where many of the [FOG's] hard copy documents are archived in boxes, there are approximately 5,800 boxes of files, including 1,120 boxes filed by the Group's finance department. The boxes are indexed by their date of filing rather than the date of the contents, so a document may well be in a box carrying a date long after the date of the document. The descriptions on the boxes are often very general, and would often not be a comprehensive description of the contents. Therefore, locating all of the documents from a specific date period would be challenging, even before the exercise of reviewing those documents for responsive documents.

37. As regards electronic documents, I am instructed that both the [FOG] companies and CVC have changed their email systems between 2006 and now (the [FOG] Companies in 2008 and CVC in 2009). This means that there are emails from before the change which would now only be retained on back-up tapes. I am further instructed that the process of restoring a back-up tape to a live environment, and then locating within it the email box of the relevant person, could itself take up to two weeks ...

46. A similar exercise to what I have described here ... would be necessary for most of the categories of documents. It is clear that together this would be a very significant exercise. It would lead to substantial legal costs, some (though not necessarily all) of which would eventually be recouped from Constantin. It would also involve significant management time which would be at the expense of time spent on the Respondent's respective business activities. As discussed below, the judgements required to identify certain of the requested documents are ones which could often be made by the business people involved at the time (assuming they are still with the business), rather than by an external lawyer or paralegal. …

68. Our clients' view was that the confidentiality club provided adequate protection given the nature and the comparatively small number of affected documents. The confidentiality club also did not deal with what would happen if the parties wished to refer to the affected documents in witness statements or expert reports, or to use them in open court. …

238. In conclusion, it is perhaps understandable that Constantin's expert valuer would like to have access to as much information as possible in performing her valuation. However, all the information that is sought through these applications cannot be essential in order to undertake a valuation for the purposes of this litigation, since that amount of information must very rarely (if ever) be available to an expert undertaking such a valuation ...

240. It is clear from the above that providing the requested non-party disclosure would place an extremely heavy burden on the Respondents, requiring them to undertake an exercise that would be very time-consuming and costly (including management time and internal resources) ..."

39. Mr Rupert Lewis, the solicitor at Herbert Smith Freehills, acting for Mr Ecclestone, has made his statement in answer to the application for disclosure against Mr Ecclestone on 10 July 2013. He set out in some detail his view of the documents relevant to the question of valuation and of the documents that were not relevant to that question. Again, I shall only quote a short passage as follows:

"19. The Applicant's case is that because of the alleged conspiracy, BLB received a price for its Formula 1 stake which was at an undervalue compared to what BLB would otherwise have required and obtained. This will require the Applicant to overcome several steps:

a. First, there will be issues as to whether, but for the alleged conspiracy, there would ever have been any different process of sale and marketing as the Applicant has suggested ...

b. Next, the question of whether there was an undervalue compared to the price BLB would otherwise have required and obtained involves considering the perspective of BLB as the seller ...

c. Accordingly, the value of BLB's shareholding has to be assessed from the perspective of BLB ...

20. It is important to keep the above context in mind when considering the Applicant's disclosure requests ... all of which are made very late and risk serious disruption to the trial date ...

25. What will be of far more assistance to the Court than CVC's internal deliberations are the deliberations of the BLB Supervisory and Management Boards with regard to the proposed sale to CVC and the information provided to those boards at the time of their deliberations. In this regard, as noted in paragraph 21 above, the parties have already disclosed a substantial quantity of material as a result of German proceedings.

26. Documents that post-date the 15 November 2005 fall into the second category ... the price that BLB was ultimately willing to sell its shareholding for was first proposed on 19 September 2005 ... BLB contractually committed to and agreed to this price on 15 November 2005 ... Documents which post-date the time when BLB agreed the price at which to sell its shares to CVC are not relevant to the question of whether, acting on its own commercial interests and having regard to the position it was in and the information provided to it, the price received by BLB fell within an appropriate range of values ...

32. [Mr Ecclestone's] position is that the Refinancing is a red herring when considering the question of value in these proceedings. To the extent that there is any benefit to be derived from considering transactions subsequent to the 15 November 2005 (which is not accepted), the transactions closest in time are the sales by JP Morgan and Lehman Brothers of their shares in Speed. Both banks agreed in December 2005 to sell their shares at a materially lower price than that agreed between BLB and CVC."

40. Finally in regard to the evidence, Mr Oliver made his seventh statement on 15 July 2013 in which he said this about Mr Ecclestone's physical possession of the documents, as follows:

"7. The applications for disclosure made by Constantin are only applications for non-party disclosure if and to the extent that the documents sought are outside Mr Ecclestone's physical possession.

8. Although it is stated in paragraph 14 of WS/Lewis that Mr Ecclestone does not have the right to inspect or take copies of any documents belonging to the FOG, 'and he does not otherwise have physical control or possession of such documents' there is no indication as to the basis on which it is alleged that Mr Ecclestone does not have physical control or possession of the documents, and Constantin contests that allegation. The FOG is managed from offices at 6 Princes Gate, Knightsbridge. According to an interview given by Mr Ecclestone on 23 September 2011 to the regular Formula 1 reporters ... Mr Ecclestone bought the building at 6 Princes Gate in 1985 and he lives in the penthouse above the offices. Mr Ecclestone has occupied those offices for more than 20 years with a handpicked team of staff and personal assistants. Constantin will invite the court to conclude that Mr Ecclestone has physical control of those offices and physical possession of all the documents held there, irrespective of the identity and ownership from time to time of the companies whose affairs he conducts from that location."

Authorities on disclosure

41. Before dealing with the issues that I have already set out I should deal briefly with the main authorities that have been cited to me in relation to non-party disclosure and Part 31.17 of the CPR. The authorities include those that were decided long before the Civil Procedure Rules had been dreamt of. It is however important to deal with those authorities as the backdrop to the application that has been made, but it is equally important to bear in mind which of the authorities concern part 31.17 and which concern the rules concerning disclosure of documents against a witness or what used to be known as a subpoena duces tecum. I find it most convenient to consider the authorities in chronological order to see how matters have developed. After I have dealt with the authorities in that order I shall look at some of the text books and the views expressed therein.
42. In Burchard v. McFarlane [1891] 2 QB 241, the Court of Appeal considered the scope of the process occasioned by the issue of a subpoena duces tecum against a witness. Lord Esher MR said this at page 247:

"If there were a subpoena duces tecum to the same effect it would have been bad upon this view of the matter, and for the reason that it would be putting upon a witness who had no interest in the matter a burden that there was no right to put upon him, that is, that he should look through his documents or books, and come to the conclusion as to what was relevant to the inquiry."

43. Fry LJ agreeing with the Master of the Rolls said this at pages 249 and 251:

"An examination as to documents means as to the possession of documents, as to what documents are in the custody and power of the person examined, and as to the description of them. That seems to me to be the natural meaning of the order. When I refer to the specifications, to which the order also refers, I find that conclusion confirmed, because the specification does not by date or partiers or other simple method of identifying, indicate the instrument, but requires the witness to determine whether documents relate to a particular vessel, and taking the two specifications together it is apparent that the intention is that Lloyd's Register shall go through all the documents in their custody or power, that have passed between themselves and their agents and certain persons named, and ascertain whether or no [sic] they have anything whatever to do with this vessel ...

In the same manner with regard to a subpoena duces tecum. You never could call on a witness to ascertain whether documents related to a particular matter in controversy. That case came before the Court of Chancery in Lee v. Angas (1), where a subpoena duces tecum was served upon a witness which described the particular documents, and then went on to direct him to produce all documents relating to certain matters in question. It was held that as a subpoena duces tecum it was bad, because it was in fact a bill of discovery against the witness."

44. In Wakefield v Outhwaite [1990] 2 Lloyd's Rep 157, Potter J again considered a writ of subpoena duces tecum against a witness and held as follows at pages 163, second column, to 164:

"However, that may be, Mr Rokison relies on the authority of Fairchild v MacFarlane and the other cases which turned on the view that the applications heard amounted to an order for pre-trial discovery as demonstrating that the vice against which the third party is to be protected is the task of going through the documents in his possession with a view to forming a conclusion as to their relevance and/or seeing whether or not they fall within the terms specified in the subpoena, rather than simply being able to place his hands on the required documents or files from the very description given. If he can do the latter, submits Mr Rokison, then the 'no discovery' objection disappears and the ruling of Vice Chancellor Page-Wood in the decision of Lee v Angas is explained, namely that since the solicitor had by the time of his application to set aside (a) performed the task of discovery under the terms of the subpoena, and (b) admitted possession of the very documents requested, there could be no good purpose in setting aside the subpoena or doing other than require the witness to appear with his documents ... I accept Mr Rokison's broad submission of principle that the form of the subpoena in this case is not one which on the face of it calls on Winchester Bowring to perform an exercise of discovery such as that referred to in the cases relied on by Mr Tomlinson, in which it appears that the terms of the subpoenas sought were so framed as to be patently applications for pre-trial discovery of documents by the persons to whom they were addressed. I also accept that, broadly speaking, the purpose and intention of this subpoena may be characterised as requiring the production of documents in aid of the testimony of a witness, which is the original and proper purpose of a subpoena duces tecum ... I see nothing in the authorities which suggests that it is a legitimate excuse to call for files of documents when it is not asserted that the contents, or at least the bulk of the contents, consist of individually relevant documents ..."

45. In the well known case that concerned George Michael, Panayiotou and others v. Sony Music Entertainment (UK) Ltd [1994] ChD 142, there was an application concerning a letter of request to a foreign court, the documents to be produced by the witness in that foreign country. Sir Donald Nicholls V-C said this at page 151 and 152-153:

"Nor is the witness to be required to undertake an unfairly burdensome search through his records to find this or that document or to see if he has any documents relating to a particular subject matter. All this is well established in relation to a subpoena to produce documents at a trial ... in re Westinghouse Electric Corporation Uranium Contract Litigation MDL Docket No 235 1978 Appeal Case 5117, the House of Lords was concerned with the incoming letters rogatory and accordingly with the interpretation of section 4(b) of the Act of 1975. The House of Lords made … a distinction between the subpoenas and the requirements of the Act at page 635, 'Classes of documents provided the description is classed as sufficiently clear may be required to be produced on the subpoenas duces tecum. The requirements of sub-section 4(e) however, are not in my view satisfied by the specification of classes of documents. What is called for is the specification of particular documents which I would construe as meaning individual documents separately described."

46. That statement must now be read in the light of observations by Lord Fraser of Tullybelton in Re Asbestos Insurance Coverage Cases [1985] 1 WLR 331 at pages 337-8.

"If I may borrow (and slightly amplify) the apt illustration given by Slade L.J. in the present case, an order for the production of the respondent's 'monthly bank statement for the year 1984 relating to his current account' in a named bank would satisfy the requirements of the paragraph, provided that the evidence showed that regular monthly statements have been sent to the respondent during the year and were still likely to be in his possession. But a general request for 'all the respondent's bank statements for 1984' would in my view refer to a class of documents and would not be admissible."

47. In American Home Products Corp v. Novartis Pharmaceuticals UK Ltd [2001] FSR 784 (Novartis) the Court of Appeal decided under Part 31.17 that a box of documents responsive to the disclosure request should be disclosed even though some of them had been identified by a patent agent who had inspected those documents as irrelevant. The Court of Appeal in Novartis concluded that all of the documents in the box satisfied the threshold criteria in CPR part 31.17. Rather than read any citations from the judgment in Novartis it is more convenient to consider the citations in the subsequent case in which the Court of Appeal placed considerable reliance on the holdings in Novartis.
48. That subsequent case was Three Rivers District Council and Others v. The Governor and Company of the Bank of England (No. 4) [2003] 1 WLR 210 in which, as I say, the Court of Appeal approved the approach that had been outlined by the Court of Appeal in Novatis. The case concerned various documents held by Her Majesty's Treasury relating to Sir Thomas Bingham's well-known inquiry into the BCCI affair. The documents sought under Part 31.17 were ultimately pruned down to the material provided to the inquiry by 17 individuals and 37 entities or institutions (see paragraphs 13 and 14 of the judgment of the court delivered by Chadwick LJ for the specific descriptions of the documents in question).
49. At paragraphs 29 to 32 of the judgment, Chadwick LJ concluded that the word "likely" in Part 31.17 meant "may well" following Rix LJ's judgment in Black v. Sumitomo [2002] 1 WLR 1562, a case which had concerned pre-action disclosure rather that disclosure under Part 31.17.
50. The important part of the judgment in Three Rivers for our purposes however is that contained in paragraphs 36-38 in which Chadwick LJ summarised what I perceive to be the present law applicable to the applications before me as follows:

"36. [In Novartis] Aldous LJ, with whose judgment the other members of this Court (Robert Walker LJ 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. In particular, the threshold condition cannot be circumvented by an order which puts upon the non-party the task of identifying those documents within a composite class which do, and those which do not, meet the condition [see Wakefield v Outhwaite [1990] 2 Lloyd's Rep 157, 163-164, Panayiotou and others v Sony Music Entertainment (UK) Ltd [1994] Ch 142, 151f].

37. Aldous LJ then turned to consider whether the documents sought by the applicant were relevant "in the sense that they meet the criteria laid down by CPR 31.17" ... He concluded, at paragraph [33], that the evidence established that 'the box contains relevant documents which the court has power to require to be disclosed'. He then addressed, and rejected, the submission that the box also contained documents that were not relevant. That submission was based, of course, on paragraph (3) of the passage in Dr Wright's evidence ... Aldous LJ said this, at page 794, paragraph 34:

'Dr Wright's view of 'relevance' cannot be determinative particularly when clearly he was considering the stature of individual documents, rather than the class. To decide what weight to place on any particular document, it will be necessary to consider it in a context. If so, a selection limited to documents Dr Wright thought were individually relevant or even those Fisons thought were relevant could provide a false picture. No doubt particular documents may turn out to be more relevant than others; some individual documents may not be 'relevant' at all.'

It is, we think, plain that Aldous LJ placed the word 'relevant' between quotation marks in paragraph 34 to emphasise that he was using the word in a different sense from that in which he had used the same word (without the quotation marks) in paragraphs 32 and 33. In paragraphs 32 and 33 relevant is synonymous with "likely to support . . . or adversely affect". In paragraph 34 'relevant' documents are those which will, in the event, turn out to support the case for the applicant or adversely affect the case of one of the other parties. Unless the word 'relevant' is understood in that sense in the context of paragraph 34 it is impossible to reconcile his readiness to contemplate the possibility that an order under CPR 31.17 may lead to disclosure of 'individual documents [which] may not be 'relevant' at all" with his acceptance, in paragraph 32 of the proposition that an order for disclosure is not to be made unless "the documents ... to be disclosed are relevant in the sense that they meet the criteria laid down by CPR 31.17.' 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.

38. 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."

51. Finally in Tajik Aluminium v. Hydro Aluminium AS [2006] 1 WLR 767 the Court of Appeal was dealing with a witness summons for documents under CPR Part 34.2, the modern equivalent of a subpoena duces tecum. The headnote to that case reads briefly as follows:

"A witness summons issued under CPR r.34.2 requires the person to whom it is addressed to attend court on a specified occasion and to produce to the court the documents to which it refers. It is a requirement reinforced by the penal sanction. Justice demands, therefore, that the person to whom it is addressed should be told clearly when and where he must attend and what he must bring with him. Anything less is unfair to the witness; it also makes supervision and enforcement by the court extremely difficult. Ideally each document to be produced should be individually identified. If not, the documents should be identified with sufficient certainty to leave no real doubt in the mind of the person to whom the summons is addressed about what he is required to do. In general, doubts about the adequacy of the description should be resolved in favour of the witness."

52. In the course of his judgment in the Court of Appeal Moore-Bick LJ (with whom Maurice Kay LJ and Rix LJ agreed) said this at paragraph 24:

"Whatever may be the origin of the present rules, there are in my view clear distinctions to be drawn between an order for disclosure made against a third party and a witness summons to produce documents. An order for disclosure normally directs the person to whom it is addressed to carry out a reasonable search for documents in his possession falling within classes which are often broadly described and to list them for the information of the parties to the proceedings. Often the documents are described in terms which call for the exercise of a degree of judgment in determining whether a particular document does or does not fall within the scope of the order. Any order of that kind, being an order of the court, is one that must be strictly obeyed, but it would be extremely unusual for a penal sanction to be attached to it or for a failure to comply in some material respect to be treated as a contempt of court, save in the case of a contumacious refusal to obey. Moreover, although disclosure is usually a prelude to production for inspection, the person giving disclosure may resist production, if he has grounds for doing so, and in any event has no obligation to do more than make the documents available to the party who has obtained the order. A witness summons to produce documents, by contrast, involves the exercise of the court's coercive powers. The person to whom it is addressed is at risk of being in contempt of court if he fails to comply in any material respect, as the summons itself makes clear. He is obliged to bring the documents to which the summons refers to court, not simply to list them or make them available for inspection. In substance a witness summons to produce documents is no different from a subpoena duces tecum and the differences between such a summons and an order for disclosure are reflected in the different procedures provided by rules 31.17 and 34.2."

53. The academic authorities include Mr Charles Hollander QC's, counsel for the respondents, learned book on Documentary Evidence now in its 11th edition. Although Mr Hollander has shunned citing his own book in support of his resistance to the claimant's application, it seems to me that there are parts of that book that do provide some small insight into the argument that he himself has advanced today. Accordingly I refer to the following brief passages from it as follows:

"3-09 ... Lord Woolf had in mind in Access to Justice four types of documents which might be discoverable: (1) the parties' own documents; (2) documents which adversely affect his own case or support that of another; (3) documents which are part of 'story' or background which though relevant may not be necessary for the fair disposal of the case; and (4) train of inquiry documents. The wording of these categories is tailored to an obligation to disclose as between the parties, rather than non-party disclosure, and thus needs modification when dealing with non-parties, but it is apparent from the wording of r.31.17(3)(a) that it is derived from (2) and is intended to exclude (3) and (4)."

54. In paragraph 3-10, Mr Hollander says:

"... Moreover, consideration of the four categories of documents to which Lord Woolf referred makes clear beyond any possible doubt that the documents the subject of the order were to be limited to category (2) documents ... Yet the conclusion that the Court of Appeal reached both in Novartis and Three Rivers (No. 4) is that an order may properly be made in respect of a large volume of material where the evidence merely shows that some part of it may assist one side or the other ... This looks at first blush like a limited principle, and that is how Laddie J. Treaded it at the first instance in Novatis. But in practice it would be hard to find better evidence as why an order should not have been on this ground than in Novatis. There the only evidence before the court as to relevance was that of the patent agent. He was the only person who had seen the documents. His evidence was that 'all the documents, and not just those I considered to be of relevance, were put into a box and separated ...' And in Three Rivers (No.4), in respect of each of 54 witnesses the application was for: '(1) documents provided by the witness to the Inquiry; (2) submissions and observations of the witness; (3) witness statements and proofs of evidence of the witness; (4) transcripts of that witness' evidence; (5) witness bundle used when Lord Justice Bingham interviewed the witness; and (6) post-interview correspondence in respect of the witness.' The application which succeeded was thus of some width.

On each occasion the Court of Appeal held that CPR r.31.17(3)(a) only permits an application for a class of document where each document in the class is within the rule. Leaving aside the gloss placed by the Court of Appeal on the need to show that the documents may support the applicant, the Court of Appeal accepted that it must be shown that each document is likely to be 'relevant' and appear to have accepted that meant that it must be shown that is likely to be something which would be disclosable on standard disclosure if held by one of the parties. How can it possibly be the case that every document in the box in Novartis fell within that test? And how can it be the case that every one of what ultimately amounted to almost 10,000 pages of documents in Three Rivers (No. 4) fell within that test?"

55. At paragraph 3-14 and 3-15, Mr Hollander expressed these views:

"The principle that a non-party must be able to determine mechanistically whether any particular document falls within or outside the order means that the non-party must assume that he will be obliged to disclose every document within the terms of the order. It means that any order for a class of documents which contemplates otherwise is bad. No order can be made for 'documents relevant to the issue of ...' It also means that the non-party will, in determining whether to object, need to consider the burden placed on him in disclosing all the documents within the defined classes.

The recent decision of the Court of Appeal on witness summonses ... [Tajik] surprisingly suggests a rather different view as to the role of the non-party ...

It is suggested on this issue the law is correctly set out by Chadwick L.J. and Moore-Bick L.J.'s summary is not an accurate analysis of r.31.17."

56. Finally, at paragraph 3-16, Mr Hollander says this:

" ... As the CPR provides for more limited disclosure than before as between the parties for litigation, it would surely be anonymous if there was different disclosure against non-parties? Equally, it would be anonymous for anon-party to be under an obligation to give a disclosure which is more extensive than that required to be given by the parties to the litigation. But the effect of these decisions does seem to be the burden is, at least on occasion, likely to be wider."

57. Mr Hollander also referred me to Ms Sara Cockerill QC's book on the law and practice of compelled evidence in civil proceedings which supports him on the question of the accuracy of Moore-Bick LJ's dictum in Tajik, to which I have already referred, and also to an extract from Matthews and Malek on Disclosure which supports him on the proposition that:

"The court is wary of categories which are loosely or broadly defined and alert to requests which appear to be of a fishing nature. It is not appropriate to leave the non-party with the view to making up its mind, whether they do or not ... (4.62)."

Issue 1: Does Mr Ecclestone have physical possession of the documents of FOG, such that he ought to be ordered to disclose them?

58. Mr Marshall made two main submissions under this head: first, that the documents belonging to FOG were in Mr Ecclestone's physical possession or custody because his office is at 6 Princes Gate and, secondly, that, even if Mr Ecclestone were right to say that as an officer of the FOG companies he could only inspect those companies' documents when doing so was in the company's interests, this inspection was in the company's interest.
59. Mr Marshall relied primarily on the case of B v. B [1978] F 181. That was a family case where the question was whether a husband had certain company documents in his "custody". Dunn J said this at page 186:

"The person to be considered is therefore the husband, the party to the suit; and the next and vital question in the case is: are these documents which were ordered to be produced documents which are or have been in the possession, custody or power of the husband? For this purpose 'possession' means 'the right to the possession of a document.' 'Custody' means ' the actual physical or corporeal holding of a document regardless of the right to its possession,' for example, a holding of a document by a party as servant or agent of the true owner. 'Power' means 'an enforcement right to inspect document or to obtain possession or control of the document from the person ordinarily has it in fact'."

60. Dunn J continued at page 187 G-H as follows:

"How do these general principles apply to the director of a company in relation to company documents, that is, to documents which are in the possession of the company in the sense that the company has the sole legal right to their possession? If they are or have been in the custody or physical possession of the director, even if he only held them or holds them as servant or agent of the company, or in his capacity as an officer of the company, then they must be disclosed. Whether such documents are or have been in his custody is a question of fact in each case. It is a matter for the discretion of the court whether they should be produced ..."

61. Mr Robert Miles QC, counsel for Mr Ecclestone, relied on the dictum of Chadwick LJ in the Court of Appeal in the case of Oxford Legal Group Limited v. Sibbasbridge Services plc [2008] EWCA Civ 387. Chadwick LJ (with whom Toulson LJ and Hughes LJ agreed) held that a director's right to inspect the books of the company could not be used for an improper purpose, and the court would not uphold that right, where it was prima facie being used for such an improper purpose. He said this at paragraphs 12, 13, 23 and 24:-

12. The judge reminded himself ... of the principles which ... should govern the approach of a court when deciding whether to order that books and records of a company should be produced for inspection by a director. They may be summarised as follows: (i) the right of a director to inspect the books and records of the company is a right conferred by the general law rather than by any provision of the Companies Acts; (ii) the right is conferred by the general law in order to enable the director to carry out his duties as such; (iii) accordingly the right determines when the director ceases to hold office; (iv) under the general law the court is left with a residue of discretion whether or not to order inspection; and (v), in particular, special considerations are likely to apply to the exercise of that discretion in a case where the director seeking to assert the right is about to be removed from office.

13. ... Slade J's observations in Conway v Petronius Clothing Co Ltd and others [1977] 1 WLR 72, 89G-91A...:

'(34) ... It is a personal right only in the sense that it may be invoked to enable the director to discharge his personal obligations to the company and his statutory obligations ...' In general a director will not be called upon to give reasons before being allowed to exercise his right of inspection because the court will assume he is acting for the benefit of the company. But if it is clearly shown that a director is not using the right for the purposes for which it is conferred but rather to injure the company or for other and improper purposes then the court may not intervene to assist him. Each case must depend upon its own facts.'

23. ... To my mind the proposition that the right to inspect the company's books of account is conferred 'in order to enable the director to carry out his duties as a director' is not in doubt. Nor is it in doubt, as it seems to me, that a right which is conferred for one purpose is not intended for use for some other purpose: for a director to invoke the right to inspect for some purpose other than that of carrying out his duties as a director is to seek to use the right for an improper purpose.

24. ... But the better view, as it seems to me, is that the judge recognised, correctly, that if it were clearly shown that a director was using the right to inspect for an improper purpose then the court had no power to assist him. The court could not aid the use of the right for a purpose for which it was not conferred ..."

62. On the evidence I have already cited it does not seem to me that FOG's documents are in the physical possession of Mr Ecclestone. Mr Ecclestone has an office at 6 Princes Gate. No doubt he has a desk there, perhaps also some racing trophies, and perhaps also some documents; but it would be stretching one's imagination to suppose that the entire offices leased by the FOG companies or other entities associated with them are properly to be regarded as in Mr Ecclestone's physical possession just because he, as Chief Executive Officer, has an office in the same building. It might be different in another case concerned with a small one-man company where the documents are kept at the director's home or in his one-man office, but here the FOG companies have a serious and substantial business. The fact that Mr Ecclestone may operate a degree of managerial control does not put all FOG's documents, whether at Princes Gate or in storage in Biggin Hill or elsewhere in his physical possession.
63. On the second point, in my judgment, it is clear from the fact that the FOG companies are opposing this application that those companies do not regard it as in their interests to disclose the documents sought in this application. It does not seem to me that I can decide on an application of this kind what is in the third party company's best interests. That must be a matter for the boards of those companies. I could only decide that question if such a decision by the board was challenged in properly constituted proceedings with that company as a party to them.
64. In these circumstances, it seems to me that I must be bound by the decision of the company's own board of directors as to what is in its best interests. The director here, Mr Ecclestone, may wish to inspect the FOG companies' documents so as to give disclosure in these proceedings. But, as it seems to me, following Chadwick LJ's dictum in Oxford Legal Group Limited supra, Mr Ecclestone only has a right to do so in order to enable him to carry out his duties as a director of those companies. Whether or not Mr Eccelstone's purposes would be improper in seeking to inspect the FOG companies' documents for the purposes of giving disclosure in this action, it is clear to me that such a right would not be invoked for the purpose for which it had been conferred, namely to allow the director to protect the interests of the FOG companies. At least, it can be said that that is clearly the view of the board of directors of the FOG companies; and that is a view that, in considering an application for ordinary specific disclosure against Mr Ecclestone, in my judgment I cannot second guess.
65. For these reasons I have concluded that Mr Ecclestone has not been shown to be in physical possession of the documents of which disclosure is sought. Accordingly I cannot require that he give disclosure against the wishes of the board of directors of the FOG companies themselves.

Issue 2: If not, must a class of documents ordered to be disclosed under Part 31.17 be specifically identified in such a way that no exercise of judgment is required by the non-party as to what documents are or are not within the class of documents?

66. Much has been said in the authorities to which I have referred about the question of the "exercise of judgment". In my judgment, however, the "exercise of judgment" is not really the central issue. A party receiving an order against him will always have to exercise some judgment in carrying it out. For example, a person ordered to disclose bank statements relating to all accounts in his name and in his possession would have to decide whether the terms of that order included trust accounts held by him as trustee and perhaps trust accounts held by him as a joint trustee. Even more difficult questions may arise in respect of which he may have to exercise judgment. If such a person is in doubt as to what was intended to be covered, he can obviously apply to the court for further and better directions.
67. When a non-party is required to make disclosure, it must be told by the order what documents he has to disclose. That instruction must be made without any reference to the issues in the case. A non-party should not be expected or required to understand the case that is in issue between other parties. A non-party should not be required to familiarise himself with the issues in litigation to which he is not a party.
68. Moore-Bick LJ was undoubtedly right in Tajik Aluminium, in my judgment, to say that there is a difference between an order under Part 31.17 and a witness summons for documents under CPR Part 34.2. His dictum was not about the details of the test applicable to Part 31.17 and should not be read as if it were. The argument about what he said is a classic case of over-interpretation of an obiter dictum in a judgment on a different topic. Chadwick LJ was also obviously right at paragraph 36 in Three Rivers to say that the threshold condition cannot be circumvented by an order putting on the non-party the burden of identifying which documents in a composite class met the condition itself. Also, of course, the court must be satisfied that the threshold test is satisfied: namely that each document in the relevant class of documents may well advance the applicant's case or damage the case of another party to the litigation.
69. In the circumstances, it seems to me that this is a bit of a non-issue. It must be clear from the order what the non-party must produce. The order must be framed without regard to the issues in the case, or to the relevance of the documents in the non-party's possession to those issues.

Issue 3: Are the documents and classes of documents sought against (i) the CVC respondents and (ii) the FOG respondents sufficiently specified to be permissible under part 31.17?

Issue 4: Are the documents sought against (i) CVC respondents and (ii) the FOG respondents likely to support Constantin's case or adversely affect the defendant's case?

Issue 5: Is disclosure necessary to dispose fairly of the claim, or to save costs and should it be ordered as a matter of discretion?

70. I intend to deal with issues 3-5 together in respect to each category of documents sought.
71. The first thing to mention concerns Ms Hughes's evidence. The fact that Ms Hughes says she needs certain documents belonging to the FOG companies and to the CVC respondents to value the FOG companies accurately is not automatically any reason for non-party disclosure. The threshold test is, as I have said: whether it has been shown that each document or class of documents sought may well assist Constantin in this case or damage the defendants' case. The achievement of a more accurate valuation, whilst no doubt a laudable objective, is a quite different thing from the satisfaction of the tests in Part 31.17. That said, however, it would obviously be a different matter if there were evidence that the documents sought might well lead to a valuation that would damage the defendants' case.
72. Secondly, in my judgment, the claimant's submission by way of example only at paragraph 52 of its skeleton argument rather misses the point. Mr Marshall said:

"If the submission is accepted that the strikingly higher value implied by the Refinancing, as compared with the sale price, is indeed relevant (and highly persuasive) evidence of the true value of the Formula One business at the date of the Transaction, it follows that sufficient disclosure should be ordered to enable proper consideration of whether, as Mr Ecclestone alleges, this is increase in value is explicable on the basis of intervening changes in the circumstances of the business."

73. Of course, it is true that, if the higher valuation at the time of the refinancing was not the result of intervening events, that may damage Mr Ecclestone's case that it was. But disclosure can only be ordered if it is shown that the documents sought may well show that to be the case.
74. Thirdly, there is on the currently existing authority, no objection to classes of documents being provided under part 31.17 provided the threshold condition as explained by Chadwick LJ in Three Rivers is met. The question is whether in each case it is, and whether the other conditions that I have referred to are satisfied.
75. There were, before this morning's hearing began, 26 classes of documents sought. The first 11 of those classes were specific documents and the next 15 were classes of documents. When matters began this morning, Mr Marshall produced the claimant's schedule, to which I have already referred and which I believe abandons his claim for 8 of those 26 categories of documents. I intend to deal only with those categories of documents that have been pursued. I believe there are 15 left, but my arithmetic may be wrong.
76. In respect of each of those categories, and I should say I will retain the numbering in the original schedule in order to reduce confusion, there are four questions which I must answer. First, the threshold test of whether it has been shown that each of the documents in the category or the class of documents may well help the claimant's case or damage the defendant's case. Secondly, whether disclosure of the documents is necessary to dispose fairly of the claim or to save costs. Thirdly, whether the definition of the documents is sufficiently clear and specific, so that no judgments about the issues in the case are required by the respondents. Fourthly, the question of whether, as a matter of overall discretion, disclosure of that class of documents should be ordered.
77. I intend to deal, after I have dealt with the specific categories, with Mr Miles's submission that no disclosure should be ordered because of the effect that it would have on the trial. It should not therefore be assumed that because I decide that there should be disclosure in answering issues 2, 4 and 5, I have predetermined the issue to be determined under issue 6.

Specific Documents

78. I should say before I start dealing with the categories of documents that I have considered in relation to each category the four questions that I have set out. Therefore, even though I shall not mention the answer to those questions in each case in order to expedite matters, it should not be assumed that I have not considered the questions that need to be considered in relation to each category.
79. Category 1: The execution option agreement referred to in paragraph 22(b) of the third page of the disclosure letter dated 11 November 2005 from the first respondent to CVC
80. Happily this is an easy category to deal with since Constantin accepts the respondent's evidence that the document does not exist. In those circumstances there is no order that can be made upon that application.
81. Category 2: The documents that are shown by data room indices to have been made available to CVC in connection with the Transaction, as shown in the annotated copies of the data room indices attached at Schedule 1
82. Freshfield's letter of 21 July 2013 offered to provide, by way of disclosure, subject to the court being satisfied that the necessary tests were passed, certain of the documents contained in schedule 1 from the data room indices. In response, Constantine gratefully accepted the FOG respondents' offer, and indicated they wanted not only the headline agreements that were offered for disclosure but also any amending agreements relevant to them excepting those concerning trademarks and tax, which were accepted not to be relevant to any issue in this case.
83. The schedule to the draft order produced by the claimant includes a list of disclosed documents from the data room concerning the transaction and the documents that are sought are sidelined in that schedule. I do not intend to read them out. The only question that I have to decide under this heading is whether it is appropriate to order, not only that the headline documents offered by the FOG respondents, be disclosed but also that any amending agreements also be disclosed.
84. It seems to me fairly clear that the documentation underlying the transaction may well assist the claimant's case. It will, in fact, be the foundation for the claimant's case in showing that transaction was affected in the way alleged. In those circumstances it seems to me quite inconsistent to argue that the agreements may well assist the claimant's case, but the amendments to those agreements do not fall within the same category. In those circumstances it seems to me that, not only the agreements that were accepted by the FOG respondents to be disclosable, but also any amending agreements, save those relating to trademarks and tax, must also fall within the second category.
85. The other questions that I have referred to above must also be answered positively, in my judgment, so that this category of documentation should be disclosed.
86. Category 4. The due diligence advice produced by Ernst & Young confirming their verification of the terms of most of the groups 50 or so material contracts which underpinned [the FOG's] financial results as referred to in paragraph 92 of WS/LLowarch
87. This category is agreed, subject to the caveats that I have already mentioned. Ernst & Young's due diligence reports dated 7 November 2005 should be disclosed.
88. Category 5: The minutes of CVC's Investment Committee relating to the Transaction and communications to and between the members of the Investment Committee relating to the value of the FOG
89. This disclosure is sought only against the CVC respondents and not against the FOG companies. Constantin has, in response to the CVC respondents' submissions, narrowed the category to: "The minutes of CVC's investment committee relating to the transaction for the period 1 August 2005 to 31 March 2006".
90. The question here turns on whether the deliberations of CVC's investment committee in considering whether or not to enter into the transaction might well assist the claimant's case.
91. The argument advanced by Mr Marshall is that Mr Ecclestone says in his evidence due to be given at the trial that CVC was taking a huge risk in entering into this transaction, and the minutes of the investment committee may well falsify that contention. Mr Marshall is, in my judgment, right that the matter has to be viewed on the basis of the pleaded issues. If there was bribery as alleged, and the transaction took place at a massive undervalue, it is clear that the deliberations of the purchaser may cast some light that may well demonstrate that that case has some veracity. In those circumstances it seems to me that the threshold test is passed and the documentation is necessary to advance the claimant's claim. The minutes are a defined class of document which can be readily ascertained and are contained in the records of the CVC companies. As a matter of discretion, this category should be disclosed.
92. Category 6: The loan application made by CVC to the Royal Bank of Scotland in relation to the Transaction (including supporting documentation) and other communications between CVC and the Royal Bank of Scotland prior to the Transaction relating to the value of the FOG
93. This category too has been narrowed in the course of argument, so that all that is sought now by the claimant is: "The loan application made by CVC to the Royal Bank of Scotland in relation to the transaction (including supporting documentation)".
94. The disclosure of these documents is, however, still objected to, broadly on the grounds that the material passing between CVC and the Royal Bank of Scotland in relation to the transaction is unlikely to help the defendants' case, and is highly confidential, and therefore, it should not be the subject of a disclosure order.
95. This category falls into two parts. The loan application made by CVC to the Royal Bank of Scotland is a defined document that can easily be located and produced. Mr Marshall submits again that RBS was central to the transaction, according to Mr McKenzie's evidence to the German Court. If, as Mr Ecclestone says, the transaction was hugely risky, then the loan application will reveal that risk.
96. If, on the other hand, as would be Mr Marshall's case, the transaction was not hugely risky and was, in fact, of value, that would very likely advance the claimant's case, possibly quite substantially. In my judgment, nothing Mr Hollander said counteracted the need for disclosure of that document. The loan application was a central element in the appraisal of the transaction, and what CVC said to its bankers about it must be very relevant. It seems to me that the document may well assist the claimant's case and must be disclosed.
97. The question of supporting documentation is rather more difficult and vague. If "supporting documentation" is taken to mean all associated correspondence and emails passing between the bank and CVC, that seems to me to be far too broad and unspecific a category to allow disclosure against a non-party, particularly in the case where one can be certain that many such documents would not advance the claimant's case at all. If, however, "supporting documentation" is intended to mean documentation attaching to and referred to in any application, then that is necessary to understand the application itself. One can understand also that CVC's communication with the bank applying for the loan would also need to be disclosed.
98. Category 7: The Memorandum of Understanding agreed with the GPMA-backed teams in May 2006, as referred to in paragraph 113 of ws/Llowarch
99. It is now agreed that the Memorandum of Understanding in May 2006 should be disclosed, subject to the conditions mentioned.
100. Category 8: The 'binding agreements reached with Ferrari, Jordan and Red Bull in early 2005 (and subsequently with Williams, Super Aguri and Minardi)', as referred to in paragraph 115 of ws/Llowarch
101. As was said in paragraph 115 of witness statement/Mr Llowarch, a binding agreement was reached with Ferrari, Jordan and Red Bull in November 2005, which taken together with the new Concorde agreement, were: "... now some form of commitment on paper on behalf of all the teams to race post 2007". It is therefore claimed by the defendants that these agreements constituted a watershed in the life of the FOG companies that led to the significant advancement of their value in the refinancing. Mr Hollander submits that, to the extent that these agreements are relevant to the value of the FOG business, their value is reflected in the financial statements.
102. This category is, however, agreed in that the FOG respondents have agreed to disclose the signed agreements.
103. Category 9: The new deal signed for the future race in Abu Dhabi as referred to in paragraph 119 of the witness statement/Llowarch, together with all prior correspondence relating to such deal
104. In paragraph 119 of Mr Llowarch's witness statement, he relies, as does Mr Ecclestone, on the fact that FOG had signed a new deal for a future race in Abu Dhabi by the time of the refinancing in November 2006 as having added value to the FOG companies, explaining the significantly increased valuation at the refinancing. The claimant has slightly narrowed this category, so as now to read: "The headline race promotion agreement constituting the new deal signed for a future race in Abu Dhabi as referred to in paragraph 119 of the witness statement Llowarch together with any correspondence relating to such deal prior to 31 March 2006".
105. Mr Hollander has accepted that the headline agreement relating to the Abu Dhabi race should be disclosed, but objects to disclosing the correspondence relating to such a deal before the closing of the transaction. Mr Marshall's submission is that the correspondence may show that the Abu Dhabi race was known to be in prospect at the time of the transaction. This, he says, will significantly advance the claimant's case and demonstrate that Mr Ecclestone's explanation for the increase in value after the transaction is inappropriate.
106. The question is whether it is appropriate to order the disclosure of any correspondence relating to the Abu Dhabi deal under Part 31.17. As I have already indicated, there is no objection to an order for the disclosure of a class of documents, provided it can be shown in respect of every document within the class that it may well assist the claimant's case. I asked Mr Marshall between whom this correspondence was said to have taken place. He answered that it was between Mr Llowarch for the FOG companies and the Abu Dhabi authorities. Provided the participants in the correspondence are stated and a time limit is put on the beginning of that correspondence, which should in my judgement be no longer than six months prior to 31 March 2006, this is, in my judgment, an appropriate request under Part 31.17. I say that despite the fact that it would necessitate there being some interrogation of the respondents' servers and IT systems. The Abu Dhabi race is given great importance in in Mr Ecclestone's defence, and it would certainly damage the defendants' case if it were shown that the Abu Dhabi race was likely or certain to come on board before the headline agreement was signed. In those circumstances I think it is appropriate to make the disclosure order requested with the limitations that I have mentioned.
107. Category 10: (i) The 'financial models' and (ii) 'the core race promotion and TV contracts in place by mid-2006', which together indicated that 'the Group had some $3.2 billion of future 2007-12 revenue under contract', each as referred to in paragraph 119 of ws/Llowarch
108. This category is now agreed, albeit formulated slightly differently as follows: "(l) Financial model version 21 dated 26 August 2006. (m) Race promotion agreements between March 2006 and November 2006 (headline agreements only). (n) TV contracts of more than $5 million entered into between March 2006 and November 2006".
109. Category 11: The corresponding models and documents of August 2005 supporting the contention that the £3.2 billion was '40% higher than the equivalent figures in August 2005' and referred to in paragraph 119 of ws/Llowarch'
110. This category is also agreed in a modified form.
111. I turn now to deal with the categories which refer to classes of documents. Fortunately a number of these documents and have been dropped by the claimants so there are rather less than first appeared.
112. Category 12 now reads as amended: The correspondence and any other documentation evidencing the agreement in principle by the eighth Respondent to enter into an 'option agreement with APM/Allsport pursuant to which FOA may elect to purchase the business of APM/Allsport on the exercise of the option' referred to in paragraph 2.2(b) of the third stage of the disclosure letter dated 11 November 2005 from the First Respondent to CVC.
113. This category is related to the first category that was not pursued, because of the respondents' evidence that the executed option agreement with APM/All Sport was not in existence. Instead, the claimant now seeks correspondence or other documentation evidencing the agreement in principle. Mr Marshall submits that the APM/All Sport agreement is said by Mr Ecclestone to be a major change after the transaction and that the claimant needs to see what precisely was in place at the time. Even if no option agreement is available Mr Marshall says the correspondence should disclose what was known about the prospect of such an agreement with APM/All Sport when the transaction was entered into. Mr Hollander says that this category is far too broad and unnecessary to conduct a valuation of the business. Moreover he submits, as he does in other cases, that the formulation is so broad that it is likely to catch irrelevant documents which are not likely to assist the claimant's case.
114. The starting point here is paragraph 22(b) of the disclosure letter dated 11 November 2005 from Alpha Prema UK Ltd to CVC that refers specifically to this option agreement. The APM/All Sport transaction is said by Mr Ecclestone and Mr Llowarch to be extremely significant to the change in value of the FOG companies between the transaction and the refinancing. Thus, prima facie, the correspondence evidencing it prior to the transaction would be likely to assist the claimant's case and damage the case advanced by Mr Ecclestone. The category must not, however, be too wide, as at the moment it seems to be.
115. What is sought is correspondence or other documentation evidencing the agreement in principle. That requires a quite difficult legal judgment as to what constitutes an agreement in principle. While it may be possible for the respondents to undertake that judgment, the category should be specified more closely. I will hear subsequent arguments if the parties cannot agree as to precisely how the category should be formulated. It can refer to correspondence but it must refer to the persons who are parties to that correspondence and must refer to the precise date and year in which that correspondence is said to have taken place. I am satisfied that the threshold test and the other tests case are prima facie satisfied but that the width of the formulation is broader either than it needs to be or than is permissible for a Part 31.17 application.
116. Category 13 as amended: Presentations and supporting financial projections generated in connection with the refinancing and communication through CVC or the FOG and third party lenders including the calculations supporting the enterprise moderation referred to in Deloitte Project Alpha 3 Cat Structure report dated 2 November 2006.
117. When pressed, Mr Marshall explained that what he really wanted was the communications, namely the documents by which the presentations and financial projections were communicated between either CVC and the third party lenders or between FOG and the third party lenders. That much was not clear from the categorisation as it was originally stated. Mr Hollander submits that the category is certain to include documents that have no relevance at all to the issues in litigation and in those circumstances the category cannot pass the threshold test.
118. It seems to me that the basic communications between CVC and FOG on the one hand and the third party lenders on the other hand will be a very good indication as to where the value in the FOG group had come from. A major issue in this case is whether the value was created by events that succeeded the transaction or not. In these circumstances again, provided the category is carefully delineated and confined in a point of time, it would satisfy the threshold test. I am concerned, however, that presentations and supporting financial projections communicated by CVC or FOG to third party lenders may be too broad, and it would be better to specify simply financial submissions produced by CVC or FOG to third party lenders in relation to the refinancing between certain dates and including calculations referred to in the requesting category. Again, I will hear argument as to the precise drafting. It may be better for the parties to go away and try to agree a formulation in a minute of order.
119. Category 14 as amended: Any data room indices or other records of documents made available to third parties in connection with the due diligence and/or credit review process undertaken by prospective lenders for the purposes of refinancing, and copies of contracts disclosed to such third parties
120. Mr Marshall submits that these indeces will show what was disclosed, which will demonstrate further there was, as he put it perhaps in the vernacular: "a lot of new stuff" or not. This category that cannot be allowed. There is no reason to suppose that an index will help his case. An index will simply show a lot of documents that were produced that may indeed produce "a lot of new stuff", but it will not be possible to tell from the index itself whether or not the new stuff referred to is helping or hindering the claimant's case. In these circumstances it seems the threshold is not met in relation to this category and I reject the application for disclosure.
121. Categories 13-15, 16-18, 20-21 and 23-24 are no longer pursued. That makes category 19 the next relevant category. It too has been severely confined.
122. Category 19: Contracts in existence and in force between the FOG and APM or ASM at the time of the transaction and also in force at the time of the refinancing (or subcontracts where different)
123. Mr Marshall submits that the contracts will show whether there was any truth in the suggestion that the increase in value arose because of the arrangements made with APM. Mr Hollander complains that there is no limitation on these contracts which may be very extensive, bearing in mind the nature of the relationship between the parties in question, and that a broad trawl through numerous documents would be required. He also points out that there is no limitation on the value of the contracts in question, which may make the inquiry very extensive.
124. There seems to me to be some, but not complete, justice in what Mr Hollander says. Bearing in mind the importance of APM and ASM for the reasons I have already given, the contracts in existence, both at the time of the transaction and at the time of the refinancing, are likely to be important. But the claimant has not shown that any content of any kind could be relevant.
125. It seems to me that the category should be redrafted so as to confine the contractual documents that need to be sought, to the significant contracts. Whether that is best done by reference to a threshold value of US$5 million or by some other mechanism, I cannot easily say. But the scope of the exercise required must be reduced. It would be best for the parties to discuss the re-drafting. If they are unable to agree a confinement of the order to the major contracts, then I will hear further argument.
126. Category 22, as revised, is: All documents, evidence and negotiation between the FOG and the teams in connection to the Memorandum of Understanding that was made in May 2006 or the renewal of the Concorde agreement between August 2005 and November 2006.
127. This is a similar kind of category to category 19. In fact, it is far more extensive. It is described by Mr Marshall as crucial because he wishes to know and inquire as to whether the suggested breakaway was likely at the time of the transaction and less likely at the time of refinancing. In other words, he says that it is simply untrue for Mr Ecclestone to contend that the transaction was extremely risky, whereas when it came to the refinancing, the agreements were in place with the teams.
128. Whilst I agree that such documentation could well assist the claimant's case, I am very concerned with the width of the formulation and I note that Mr Marshall's slimming down has not been particularly effective. It seems to me that some documentation passing between specified persons in relation to the arrangement between the teams and the FOG, both at the time of the MOU in May 2006 and the renewal of the Concorde agreement in August 2005 and November 2006 should be disclosed. But this category needs to be confined in my judgment so as to specify precisely what is sought. It should specify precisely who was engaged in communications and the precise dates of the correspondence. This must be limited to a relatively short period to coincide with the evidence that has been given by Mr Llowarch and Mr Ecclestone in relation to each of these negotiations.
129. Again, I will need the parties to consider the drafting, but I make it clear that it must be as tightly drafted as possible.
130. Category 25, as revised, is correspondence and emails and other documentation referred to by Mr Llowarch relating to potentially lucrative new races in locations such as Korea, Valencia and Singapore that FOG was in the process of negotiating in paragraph 111 of his witness statement.
131. This category is very broad and unspecific. It is true that Mr Llowarch denies the exploration of potentially lucrative new races. It seems to me that this could as easily be a matter for cross-examination. There is very limited support for the case that this documentation, let alone each and every document within this broad category, could be shown to support the case, and in these circumstances I reject this category.
132. Category 26, as revised, is as follows: the financial model relied upon by CVC to support the forecast used in the second offer letter of CVC dated 19 September 2005.
133. Mr Hollander suggested that this was a new request, far more limited than the previous one, but nonetheless something upon which he has not had time to take instructions. In my judgment, that is a little unfair because what was previously requested was: "Presentations, prospectuses, financial projections and calculations relating to the value of the FOG generated or received by the Fourth or Ninth Respondents prior to and in connection with the Transaction, and memoranda and communications attaching or referring to such presentations, projections or calculations."
134. The financial model is, according to Mr Marshall, intended to be just another name for a financial projection, and he is identifying a precise financial projection used. It seems to me that this is a document that may well assist the claimant's case for reasons I have previously given. It may well be something that would support the claimant's case. I will allow disclosure of this document.

Issue 6: If disclosure would otherwise be ordered should it now be denied because to order it would inevitably involve a delay in the trial date?

135. I indicated earlier that I will hear further argument after this judgment as to whether the disclosure that I intend to order does necessitate the postponement of the trial. I take the preliminary view, however, that it is likely to do so, bearing in mind that three or four of the categories that I have ordered are quite extensive and will require some time to be produced.
136. Mr Hollander indicated to me just before I began to deliver this judgment that his clients would require three months if any of the larger categories were ordered and two or three, as I say, of those categories have been ordered, and I can quite understand why that time might be necessary. I have therefore to consider whether Mr Miles' submission that it is inappropriate to make the disclosure order.
137. As I have already intimated, Mr Miles says that this action hangs over his client's head. He might have said that his client is no longer as young as he once was and it is unfair to him to have a trial date that has been fixed for a considerable time, adjourned for what will also be a considerable time. Possibly that might be of more weight if it were not for the fact that it is well known publicly that other proceedings are pending against the first defendant and this matter is unlikely to go away in a matter of weeks or even months, whatever decision is reached about this trial.
138. In my judgment, the disclosure that has been sought, though it was asked for late and should have been requested some time earlier than it was, is necessary for the fair disposal of this claim. In those circumstances, I would be loath to refuse it on the grounds simply that a fixed trial date would have to go off. It seems to me that there are other reasons why the trial date may go off because I think the estimate was rather short and might need to be longer anyway, which might anyway necessitate an adjournment.
139. So for all those reasons, I have concluded that whilst there is force in what Mr Miles has submitted, the mere fact that the claimants have not moved as quickly as they should to make this application, does not justify refusing the disclosure sought. I shall deal with the question of sequential exchange of expert evidence, once I have heard further argument after this judgment has been delivered, in the course of giving further directions, if there is to be an adjournment of the trial, about which I will also hear further argument.

Issue under Part 33.4 concerning the cross-examination of Mr McKenzie

140. The question under Part 33.4 is rather more straightforward now that the claimant has decided not to rely on parts of the statement made by Mr McKenzie in the German proceedings. The position now is that the first defendant has served a Civil Evidence Act notice referring to large tracts from Mr McKenzie's statement in the German proceedings covering many matters that are extremely relevant to the issues in this case. It seems to me that the discretion given to the court under Part 33.4 should, in those circumstances, be exercised so that there should be an order that if the defendant wishes to rely on Mr McKenzie's evidence, he should be called as a witness so that the claimant can cross-examine him on those statements. It will be a matter for the trial judge to decide the extent of that cross-examination and any other matters arising from it. It will be noted, of course, from the note in the White Book that I read out earlier in this judgment that it remains open to the first defendant to decide whether to rely on those statements, because he has not yet done so, as Tomlinson J held in the case of Tsavliris Russ supra.
141. I will therefore make the order sought in relation to Mr McKenzie's cross-examination.

Conclusions

142. For the reasons that I have given, I will dismiss the application for disclosure against Mr Ecclestone personally, and order disclosure of various specific documents and categories as intimated above against the CVC respondents and the FOG companies.
143. I will hear further submissions on the adjournment of the trial, and on the timing of required disclosure. I shall thereafter give further directions for future conduct of this case, including the service of expert evidence.
144. I will hear counsel now on those matters.