Tuesday, 15 July 2025
HON. MR JUSTIC PICKEN
- This is the pre-trial review from the perspective of a trial that was due to be held before me starting at the end of September. A number of matters have been canvassed including of a disclosure type which have been dealt with during the course of today's hearing.
- The final of those matters arises from a disclosure application made by the Claimants against the Defendants, and that application raises a point of principle which necessitates a ruling such as this.
- The application is framed in the appendix to the draft order that is before me in the following way at paragraph 3:
"Such provisions and/or parts of documents containing and/or evidencing any agreement or the terms thereof between CGR or any subsidiary of CGR and any third party pursuant to which the third party agreed to sponsor CGR during the period 9 August 2023 to 31 May 2025 inclusive, which refer to drivers in the IndyCar series including without limitation any such provisions and/or parts of:
3.1 Any agreement with DHL (inaudible) companies questions; and
3.2 any agreement with PNC Bank."
- The application is made pursuant to primarily pursuant to Practice Direction 57AD, and specifically paragraph 21 of that Practice Direction which is in the following terms (under the heading "Documents referred to in evidence"):
"21.1 A party may at any time request a copy of a document which has not already been provided by way of disclosure but is mentioned in (1) a statement of case; (2) a witness statement; (3) a witness summary; (4) an affidavit, or (5) an expert's report.
21.2. Copies of documents mentioned in a statement of case, witness evidence or an expert's report and requested in writing should be provided by agreement unless the request is unreasonable or a right to withhold production is claimed.
21.3 The document is mentioned where it is referred to, cited in whole or in part, or there is a direct allusion to it.
21.4 Subject to rule 35.10(4), the Court may make an order requiring a document to be produced if it satisfied such an order was reasonable and proportionate as defined in paragraph 6.4."
- The application has as its launch pad passages in a witness statement which the Defendants have lodged for the purposes of trial from a Mr Michael Hull, who is the managing director of Chip Ganassi Racing. In his witness statement, under the heading "Sponsorship in IndyCar", Mr Hull has the following to say at paragraphs 27 to 29.
"27. I have been involved in some negotiations for CGR regarding sponsorship arrangements. Whilst I am not involved in the details which are handled by more junior staff members, I am CGR's relationship person for sponsors and I have had involvement with sponsors since I joined CGR in 1992.
28. In my experience it is not typical for contracts between IndyCar teams and sponsors to specify the identity of drivers. It is about the relationship between the owner of the team, here at CGR, Chip, and the CEO of the sponsor. It is about the trust they have and how the partnership develops over time. Sponsorship arrangements at CGR have predominantly and been related to the team and Chip has been allowed to choose the drivers. We have never had a situation at CGR where we have had to hire driver A to make the sponsorship relationship successful.
29. In my experience it is not typical for contracts with sponsors to set out the minimum standards for CGR's drivers. I consider that in reality the expectation of sponsors is that CGR will win as a team and they will be part of that. For example, PNC Bank sponsor one CGR car, and DHL sponsor another CGR car. In my opinion while sponsors want their car to win, if the PNC Bank car won DHL would be excited for that because they are part of the win and enjoy the success of the team."
- I should mention in passing that Mr Hull's reference to "Chip" is a reference to the principal of the Chip Ganassi Racing team of which he is managing director.
- The application is brought under paragraph 21 on the basis that in these passages, specifically in paragraph 28 and 29, there is mention of contracts with PNC Bank and DHL sufficient for the purposes of paragraph 21.3 so as to justify an order being made under paragraph 21.4, alternatively, if not under paragraph 21.4, then under what might be termed the Court's inherent jurisdiction, but more specifically the power vested in the Court under CPR 3.1(2)(p), "to take any other step of make any other order for the purpose of managing the case in furthering the overriding objective ...".
- Mr Goulding observes that Mr Hull's evidence appears to be adduced in support of the expert evidence given by the Defendants' experts to the effect that the sponsorship of IndyCar racing teams has as its focus the teams rather than the identity of any particular driver including, in the present case, relevantly, the Second Defendant, Mr Palou.
- Mr Goulding submits that, in such circumstances, to ascertain whether the sponsorship contracts to which Mr Hull refers specifically (in particular in paragraph 29 of his witness statement) contain reference to any specific driver as opposed to a specific car or the team more generally is relevant to one of the issues that the Court is going to have to consider at the forthcoming trial.
- Put differently and more shortly, were it to transpire that the PNC Bank and/or DHL sponsorship agreements contain reference to a specific driver, as opposed to a specific car or the team more generally, then Mr Goulding's submission at trial is likely to be that that undermines not only the evidence that Mr Hull seeks to give but also the evidence given by the experts in their reports commissioned by the Defendants.
- I will return to that question, namely of relevance to put the matter loosely, in a short while. There are, however, two prior questions. The first is whether there is a mention of the sponsorship contracts involving PNC Bank and DHL for the purposes of paragraph 21.3, and the second question is whether, if there is a sufficient mention, the Court has power pursuant to paragraph 21.4 and/or CPR 3.1(2)(p) to make an order not requiring that the Defendants produce the relevant contracts since it is accepted that the Defendants do not themselves have control over those contracts in the light of the evidence that the Defendants have adduced in relation to the application, but requiring the Defendants instead to ask Mr Hull to produce the documents, Mr Hull being a third party, as it is accepted by Mr Goulding, but nonetheless a witness whose evidence is sought to be adduced by the Defendants. It is Mr Goulding's submission that either pursuant to paragraph 21.4 or CPR 3.2(p) the Court has jurisdiction to require the Defendants to make the request of Mr Hull for the relevant contracts.
- I deal, first, with the question of compliance with paragraph 21.3. As to this, the question is whether, in the language of paragraph 21.3, the contracts concerned are referred to, cited in whole or in part, or whether there is a direct allusion to them in those passages which I have quoted from Mr Hull's witness statement.
- I am satisfied that, were the Court considering only what Mr Hull has to say in paragraph 27, then there would not be sufficient mention in the way described in paragraph 21.3. In paragraph 27, there is only a general reference to "sponsorship arrangements", and even assuming that that is a reference which should be taken as referring to contracts as opposed to something more loose, nonetheless it does not seem to me that there is specific reference there to anything particular so as to justify the invocation of paragraph 21.3.
- As to what Mr Hull has to say in paragraph 28, I acknowledge that Mr Hull says something more specific but nonetheless it seems to me, again, that what he has to say is not specific enough for the purposes of paragraph 21.3. He refers in the first part of paragraph 28 to it not being typical for contracts between IndyCar teams and sponsors to specify the identity of drivers. There is nothing there specific; there is no reference to a particular document, here a contract, nor is there a citation in whole or in part or a direct allusion to such a document. He goes on to refer to "sponsorship arrangements at CGR having predominantly been related to the team." Again, it seems to me that there is not sufficient enough mention there to justify an application pursuant to paragraph 21.3.
- However, the position does seem to me to require a little more scrutiny when it comes to what is stated in paragraph 29 by Mr Hull. There, the reference is to "contracts with sponsors" setting out "the minimum standards for CGR drivers" which seems to me to be more specific than what is stated in paragraphs 27 and 28. The paragraph then goes on to refer to the reality, as Mr Hull puts it, being that sponsors are interested in the team rather than a specific driver. Mr Hull then says, to quote again: "For example, PNC Bank sponsor one CGR car, and DHL sponsor another CGR car." It seems to me here that there is some reference -- whether it is sufficient for the purposes of paragraph 21.3 I will come on to deal with now -- to something more specific than there is in paragraphs 27 and 28. The question is whether it is specific enough.
- As to this, I have been taken to the decision of Deputy Master McQuail in Hoegh and another v Taylor Wessing LLP and another [2022] EWHC 856 (Ch) and the detailed examination of authority contained at [14] to [28]. That authority pre-dates paragraph 21.3 and is likely, although nothing really turns on it, to be the inspiration for the wording used in paragraph 21.3. To that end or for that reason, I find what Deputy Master McQuail has to say in the earlier passages of the judgment to be of limited assistance. At [40], the Deputy Master summarises the position as follows:
"The Court of Appeal cases of Dubai and Rubin are clear. A document is not 'mentioned' to engage what is now paragraph 21 of PD51U unless the reference is a direct allusion to it or to its contents. Reference by inference is not sufficient and reference to the effect of a document rather than its contents is also not sufficient. Further a mere opinion that on the balance of probabilities a transaction will have been effected by a document is not itself enough."
It is that passage which is mentioned in the notes in The White Book to paragraph 21.
- In the present case it seems to me, although only by a relatively fine margin, that the references in paragraph 29 of Mr Hull's statement do bring into play paragraph 21.3. There is sufficient reference and indeed a "direct allusion" to the contracts of sponsorship involving PNC Bank and DHL.
- This brings me to the second question I have identified, which is whether, as a result, the Claimants are able to seek what they seek pursuant to paragraph 21.4 or CPR 3.1(2)(p). Mr Goulding's submission in relation to this is that the terms of paragraph 21.4 are silent in relation to the question of control, so as to mean that the Court can make an order which requires a party to proceedings which does not have the control of relevant documents nonetheless to ask a third party (here Mr Hull, who as it happens is also a witness in the proceedings or will be) to produce those documents, alternatively that that power exists under CPR 3.1(2)(p).
- I am quite clear that that submission is not correct. It should be noted immediately that the White Book, as it happens over the page, goes on to set out at CPR 31.17 (under the heading "Orders for disclosure against a person not a party") the power of the Court to order a non-party to produce documents. That, as Mr Goulding acknowledges, provides the Claimants in this case with the possibility at least of seeking an order from the Court directly against Mr Hull.
- Mr Goulding submits nonetheless that, although that powers exists, it is by no means clear that such an order would be made bearing in mind that Mr Hull is resident outside the jurisdiction. To that end, I have been referred by Mr De Marco to a decision of the Court of Appeal, namely Gorbachev v Guriev [2022] EWCA Civ 1270, where Males LJ at [89] and [90] considered, albeit briefly and without having to reach a final conclusion, whether a third party disclosure order can indeed appropriately be made against a party resident outside the jurisdiction. He observed at [90] that there is, as he put it, "something to be said for both of these views", namely as to whether an order can be made or whether an order cannot be made. He went on to refer to the making of an order against a third party outside of the jurisdiction as being one which would be made in exceptional circumstances. For those reasons, I have some sympathy with Mr Goulding's observation that, were an application made under CPR 31.17 against Mr Hull by the Claimants, there can be no certainty that an order would be made. It does not seem to me, however, that that uncertainty justifies the Court regarding itself as having jurisdiction under CPR 21.4 or indeed CPR 3.1(2)(p) if otherwise the Court considers that it lacks such jurisdiction, as I consider is indeed the case.
- The fact that there is a separate ability, albeit lack of certainty, to seek documents from a third party is a strong pointer to paragraph 21.4 and CPR 3.1(2)(p) not applying in the present circumstances so as to require the Defendants to ask Mr Hull for the documents to be produced.
- That conclusion is one which I considered correct as a matter of principle and is supported by a decision of Mr Peter MacDonald Eggers KC in Various Airfinancing Leasing Companies v Saudi Arabian Airlines Corporation [2021] EWHC 2904 (Comm), [2022] 1 WLR 1027. Mr MacDonald Eggers was in that case dealing with different provisions, indeed the pilot provisions which are the forerunner to the now paragraphs 17 and 18 of the Practice Direction, but what he had to say seems to me to be equally apposite in the present context. There, what was being sought was in effect the same type of order as is now sought, namely one which required the party to the proceedings before him to use best endeavours to obtain documents held by third parties. At [54], Mr MacDonald Eggers said this:
"There is no authority of which I am aware which allows the Court to require a party to exercise best endeavours to obtain or to request a third party to provide documents under the disclosure pilot or generally under CPR part 31. Such an order might well be made if the requisite 'control' is established (Phones 4U vs EE Limited [2021] 1 WLR 3270). Indeed, even if the relevant party does not have control of a document the Court has a separate power to make orders requiring a third party to provide disclosure of that document, at least to the extent that the Court has jurisdiction over that third party under CPR 31.17 which is expressed to be applicable to PD51U by paragraph 1.9 in section 2. However, where a party to the relevant proceedings has no relevant control over the documents in question, absent any specific provision in the CPR permitting such an order, the Court does not have the power to make such a best endeavours order by way of an extension of the powers allowed it by the CPR, because the Court's jurisdiction is derived exclusively from statute or delegated legislation, namely the CPR (Vinos v Marks & Spencer Plc [2001] 3 All ER 784, paragraph 26) and because the CPR makes no provision for such a power in a case such as this".
- The position is the same here. There is a separate power, namely CPR 31.17, the same power to which Mr MacDonald Eggers was referring, and nothing in paragraph 21.4 or in CPR 3.1(2)(p) even hints at an equivalent order being made, as it were, by an alternative route, namely requiring a party to the proceedings to make a request of a third party.
- The fact that there may be difficulty in obtaining an order under CPR 31.17, or in making that order effective given Mr Hull's absence from the jurisdiction, is to be noted but does not justify the Court concluding that there is a jurisdiction when the jurisdiction, plainly in my view, does not exist.
- In this respect I was referred also to a more recent decision of Jacobs J, namely The Public Institution for Social Security v Al-Wazzan [2024] EWHC 480 (Comm) where the following was stated at [35] and [36]:
"35. One issue in Various Airfinance was whether in circumstances where a party did not have control over third party documents the Court could order the party nevertheless to make a request of the third party for the production of such documents by way of an order that it should exercise best endeavours to obtain the documents. Mr MacDonald Eggers decided after a full review of the authorities that could not do so (see paragraphs 47-59) concluding that the Court had no jurisdiction to make an order requiring a party to exercise best endeavours to obtain or request a third party to produce documents for disclosure which are not already in the party's control.
36. As a matter of judicial comity, I should follow the decision of another judge at first instance unless I am convinced that the judgment is wrong ... None of the parties submitted that on this issue the decision in Various Airfinance is clearly wrong and I therefore see no reason not to follow it ...".
- I agree with Jacobs J in what he had to say there but would add, by way of repetition, that, in any event, as a matter of principle, it seems to me that what Mr MacDonald Eggers decided, far from being plainly wrong, was plainly right.
- In those circumstances, my conclusion is that it necessarily follows that the order which Mr Goulding on behalf of the Claimants seek is not an order which this Court has jurisdiction to grant.
- This leaves a final matter which, in the circumstances, is academic, namely whether the documents are sufficiently relevant or probative as to require their production - in this instance through the making of a request by the Defendants of Mr Hull. On this, I prefer to express no concluded view other than to note that there are arguments in each direction. One of the reasons that I prefer not to express a concluded view at this juncture is in case an application is made under the CPR 31.17 and in case I am the judge dealing with that application.
- I should just say lastly, that it is probably (although I say no more than that) going to be open to Mr Goulding at trial, if he sees fit to do so, to make an observation as to the fact that the documents that are referred to by Mr Hull are not available, not only in the context of Mr Hull's giving of evidence himself but also bearing in mind that, of course, the fact that the Court has concluded that it is not appropriate to order the Defendants to ask Mr Hull to produce documents does not preclude the Defendants themselves choosing to ask Mr Hull to produce documents. It may well be that, if the documents are not available and no request has been made, then Mr Goulding will be able to advance certain submissions by way of inference. Whether he does and whether those submissions will have any force will be matters for another day. I express no view one way or the other for now.
______________
