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Formula 1 companies ordered to disclose documents in Ecclestone litigation

Thu 12 Sep 2013

The High Court has ordered a number of Formula 1 group companies and CVC Capital Partners Limited (“CVC Capital”) to give disclosure of documents, notwithstanding that they are not parties to litigation in which the orders were made.

In Constantin Medien Ag v Ecclestone and others ([2013] EWHC 2674) the Claimant, Constantin Medien AG (“Constantin”) claims that Bayerische Landesbank (“Bayerische”) was induced by a bribe of US $44 million (allegedly paid by Bernie Ecclestone and Bambino Holdings Limited to Dr. Gerhard Gribkowsky) to sell its 46.65% shareholding in the Formula 1 group to CVC Capital for US $828 million, which is alleged to be an undervalue. Dr. Gribkowsky was allegedly the Chief Risk Officer and a director in Bayerische at the time of the sale, and responsible for matters relating to the sale of Bayerische’s shares in the F1 Group.

Bernie Ecclestone declined to provide documents specifically requested of him, on the grounds that as a defendant in the action in his personal capacity, any documents of companies in the F1 group were not in his possession or custody and the F1 group would not permit him a right to inspect documents held by those companies otherwise than in accordance with his exercise of his duties as a director of them.  The court agreed, and dismissed Constantin’s application for specific disclosure under CPR 31.12 against Bernie Ecclestone on the principal ground that the documents sought belonged to the Formula 1 Group and were not in his possession or custody.

However, the court did allow an application for non-party disclosure against the Formula 1 Group and CVC Capital because the documents were considered likely to support the case of Constantin or damage the case of Bernie Ecclestone and the other defendants, and that their disclosure was necessary to dispose fairly of the issues in the claim. The decision was reached in accordance with well-established rules in Part 31.17 of the Civil Procedure Rules under which a person or company who is not a party to proceedings can be ordered to disclose documents in their possession or control.

For more information or for advice on protecting sensitive documents from disclosure or limiting the effect of an order for disclosure, please contact Marie-Louise King.

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