Adam Johnson J: Order made
What one person regards as opportunism in litigation “might equally well be another person’s creative lawyering”, a High Court judge has said.
Mr Justice Adam Johnson observed that “litigation is an inherently adversarial process and there is a degree of opportunism in much litigation activity”.
He was ruling on a late application for third-party disclosure made on 6 October, the day before the pre-trial review in the case and ahead of an 11-wek trial due to begin on 16 November.
Nebahat Evyap Isbilen, a Turkish woman living in the UK, has brought two cases which are being tried together. The first is against a former adviser, Selman Turk, and the second is a related claim against financial services provider Hanson Asset Management.
Mr Turk is alleged to have misused $90m he was given by Mrs Isbilen in breach of trust, while Hanson is alleged to have dishonestly transferred $28m of it on Mr Turk’s instruction in breach of its mandate.
At the time, Hanson was being absorbed into a group of Bulgarian companies. Earlier in the litigation 225,000 emails sent from and received in the accounts of four Bulgarian directors of Hanson were transferred to an English service provider called Interpath so that relevant emails could be identified as potentially disclosable. In the end, 28 documents were disclosed.
Mrs Isbilen’s team was interested in emails that fell outside of this review and in late April 2026 became aware that they were still held in England and Wales, leading to the application for third-party disclosure in relation to certain key words.
Adam Johnson J held that the test for an order was met. The documents “likely represent further pieces in a complex puzzle which is presently incomplete”, he said.
“It may always remain incomplete, but certainly a fairer and more reliable outcome is likely to be achieved if more, rather than less, is known.”
Among the objections were that the application was opportunistic: it had only come about because the Bulgarian companies had co-operated in moving substantial amounts of data to Interpath in order to facilitate the earlier review, which they left within the jurisdiction in order to be helpful.
Further, the respondents were critical of the delay in bringing the application until late August.
The judge said: “I see some force in these points, but ultimately they do not tip the discretionary balance in favour of refusing Mrs Isbilen’s application.
“To start with, litigation is an inherently adversarial process and there is a degree of opportunism in much litigation activity.
“It is certainly true that Mrs Isbilen is taking advantage of the avenue opened up by the Court of Appeal’s decision in Gorbachev v Gouriev [which held that documents within England and Wales are subject to the court’s power to require disclosure from a third party, even if the owner of the documents is abroad] but I regard that as a matter of limited weight.
“The Bulgarian companies might think it against the spirit of the arrangement they put in place, but there is nothing illegitimate about it, and what one person regards as opportunism might equally well be another person’s creative lawyering.”
Adam Johnson J agreed that the application could have been brought earlier. While the timing was “regrettable”, it did not have “associated with it the degree of culpability that would warrant refusing the relief sought”.
Back in early April and May, it was “not unreasonable” for Mrs Isbilen to await the outcome of two letters of request issued to legal authorities in Bulgaria under the 1970 Hague Evidence Convention. This process did not conclude until 22 July.
“It was logical to do so. Allowing time for document translations and further correspondence explains the further delay between late July and late August,” the judge added.
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