04.02.2026
PCB Byrne has successfully represented Russian aluminium giant IPJSC United Company Rusal (“Rusal”) in obtaining a disclosure order against Russian oligarch Vladimir Potanin in relation to documents held by PJSC MMC Norilsk Nickel (“NN”) and its subsidiaries in a major dispute in the Commercial Court. NN and its subsidiaries (the “NN Group”) together form one of the world’s largest producers of nickel, palladium, platinum, rhodium, copper and cobalt.
The application concerned Mr Potanin’s obligations to provide disclosure of documents held by NN and certain NN subsidiaries on the basis that he has legal and/or practical control of such documents as NN’s President and General Director (equivalent to a CEO) for the purposes of Practice Direction 57AD. The matter came before Nigel Cooper KC, sitting as a Deputy Judge of the High Court, at the third case management conference on 9 and 10 December 2025. In a judgment handed down on 30 January 2026, the court granted Rusal’s application.
Background to the application
The proceedings concern Rusal’s claims against Mr Potanin, Roman Abramovich and their respective corporate vehicles, Whiteleave Holdings Limited and Crispian Investments Limited, for breaches of an English law agreement entered into by the parties relating to their shareholdings in, and the management of, NN. That agreement was entered into as part of the settlement of a long-running dispute between Rusal and the Interros Group (controlled by Mr Potanin) and provided for Mr Abramovich to acquire a stake in NN as a neutral ‘peace-maker’ between Mr Potanin and Rusal, and for Mr Potanin to become CEO of NN, subject to various enforceable duties and a veto right held by the other parties in relation to certain matters. Rusal alleges that Mr Potanin has subsequently engaged in serious wrongdoing, including mismanaging and dissipating the assets of NN and its subsidiaries, in breach of the FA’s terms.
Test for practical control – meaning of “free and unfettered access”
In granting Rusal’s application, Nigel Cooper KC applied the tests for legal and practical control under Practice Direction 57AD, which were largely not in dispute between the parties. The Deputy Judge considered that, in assessing practical control (i.e., whether there is an arrangement or understanding such that, even if not legally binding, a party has “free and unfettered access to the documents covered”), it is necessary to consider whether a third party’s consent to the disclosing party’s access to documents was for specific purposes only, or is sufficiently unrestricted to establish control by the disclosing party. It was not necessary to consider which documents or categories of documents the third party’s consent extended to, or whether there were limits on the ways in which a disclosing party was able to access the documents. If a third party’s consent only extended to certain documents or categories of documents, this was not a bar to the disclosing party being required to disclose such documents.
Interaction between English and foreign law
The judgment confirms the approach to be taken where the right to access documents exists under foreign law. While the question of whether control existed was a question of English law, foreign law needs to be considered to determine the nature and extent of that right.
The court also affirmed that the fact that disclosing a document under a party’s control may breach a third party’s confidence or lead to a breach of foreign civil or criminal law is not automatically a basis for that party to avoid disclosure, and set out the relevant principles that the courts will apply in such a situation (at §39).
After considering expert reports from both sides, Nigel Cooper KC found that under Russian law, a CEO has a legal right to access a company’s documents for the day-to-day management of the company, and can issue mandatory instructions to employees for the provision of documents, provided this is exercised consistently with a duty to act reasonably and in good faith in the interests of the company.
Mr Potanin found to have legal control of NN documents and practical control of NN subsidiaries’ documents
Applying the tests for legal and practical control to his findings on Russian law, Nigel Cooper KC concluded that Mr Potanin, as CEO of NN, “does have a legally enforceable right to possess, inspect and take copies of documents belonging to NN even if there are exceptions to that right for as yet unidentified particular documents or categories of documents” (at §87).
This was because the evidence showed that Mr Potanin had control over a significant volume of NN documents, even if some documents may fall outside his control because he would be acting in breach of Russian law restrictions on the dissemination of certain information, or unreasonably and in bad faith in seeking to disclose them. It was for Mr Potanin to establish that particular documents or categories of documents fell outside his control, and he had not provided any evidence of this at the hearing. The Judge accepted that it was clearly “in NN’s interest for Mr Potanin to have access to documents from NN and certain of its subsidiaries for the purposes of defending” Rusal’s claims, and doubted that many relevant documents would fall within the Russian law restrictions cited by Mr Potanin, or could not be disclosed in line with the exceptions to those restrictions. Mr Potanin was accordingly required to conduct searches to identify documents that may properly be disclosable because they were under his control (including with the appropriate redactions or with the consent of the owners of the information).
The court further found that Mr Potanin had practical control of documents belonging to NN’s subsidiaries, because the evidence before it suggested that NN and its subsidiaries would comply with requests for such documents made by him given his position and authority within the corporate structure. This was supported by evidence of the integrated nature of the NN Group’s business and its shared document/information systems, previous instances of Mr Potanin and Whiteleave obtaining documents from NN’s subsidiaries, and NN’s provision of such documents to Rusal in response to shareholder requests.
Nigel Cooper KC concluded that the evidence before him did not suggest that Mr Potanin (or NN, its subsidiaries or officers) would face a real risk of incurring liability as a consequence of Mr Potanin’s compliance with a disclosure order (or in any case, a risk which outweighed the importance of the fair disposal of the proceedings).
Outcome
The Deputy Judge concluded that a disclosure order covering NN and 11 named subsidiaries would be reasonable and proportionate, subject to the removal of a proposed “catch-all” provision for other subsidiaries, and required Mr Potanin to provide a witness statement setting out the steps taken to carry out the searches required by the order. In reaching this conclusion, the Deputy Judge took into account the serious allegations of fraud, misconduct and negligence being made in the proceedings and the desirability of the judge at trial being provided with all relevant evidence, as well as a lack of evidence to show that NN and its subsidiaries would incur a disproportionate level of costs, or that the proposed searches would be unduly burdensome. Nigel Cooper KC noted that “if documents are not disclosed, questions arise as to whether Mr Potanin could reasonably have done more to procure documents from NN or its subsidiaries”.
Key takeaways
The decision provides a useful summary of the case law on control of documents for the purposes of disclosure, and important guidance on the application of Practice Direction 57AD’s control test where the disclosing party’s alleged right to access documents exists under foreign law. It will be of particular relevance to senior executives of major corporations resisting disclosure applications based on their control of documents held by companies in their corporate structure.
The principles set out in the judgment will also be useful for practitioners assessing a client’s potential disclosure obligations in cross-border commercial disputes involving large multinational groups. Whilst the burden is always on the applicant to show that there is control (as is noted at §36 of the judgment), once the court is persuaded that there is control, parties seeking to avoid providing disclosure or inspection of documents on proportionality grounds or on the basis of other foreign law restrictions regarding access to documents will likely need to produce clear and specific examples to the court to do so. The court’s remarks at §§85 and 86 in particular serve as a helpful indication in this regard.
Overall, the decision demonstrates that the court will take a practical, measured and realistic approach to disclosure while being willing to balance the need for comprehensive disclosure against proportionality concerns.
A 14-week trial has been set down in the proceedings, commencing in April 2027.
Olga Bischof, Neil Micklethwaite, Nick Ractliff, Tom McKernan, Andrew James, Andrew McLeod, Frances Jenkins, Sofia Evans and James Hilton of PCB Byrne LLP instructed Fionn Pilbrow KC of Brick Court and Tom Ford and Francis-Cardell-Oliver of Essex Court.
The judgment is available here.
back to news and insights