Secretary of State for Transport v Pell Frischmann Consultants Ltd [2006] EWHC 2756 (TCC)

“On the application, in accordance with rules of court, of a party to any proceedings … the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings, and who appears to the court to be likely to have in possession, custody or power any documents which are relevant to an issue arising out of the said claim (a) to disclose whether those documents are in his possession, custody or power, and (b) to produce such of those documents as are in his possession, custody or power to the applicant……” 34. The rules which Parliament envisaged when enacting section 34(2) are now to be found in Part 31 of the CPR. Rule 31.17 provides: “(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.” 35 The first conundrum which rule 31.17(3) presents to the reader is this: how can the litigant know whether documents which he has not seen are likely (a) to help or hinder his own case, or (b) adversely or beneficially to affect the case of his opponent? In many instances, the most that a litigant can say is that the documents will obviously be relevant, but he cannot say whom they will help. 36 The Court of Appeal has addressed this conundrum in Three Rivers District Council and others v Governor and Company of the Bank of England (No 4) [2002] EWCA Civ 1182; [2003] 1 WLR 210. This is one of many judgments arising from the ill-fated BCCI litigation. In this particular round, the claimants were seeking to obtain from HM Treasury documents generated by Lord Justice Bingham’s enquiry into the Bank of England’s supervision of BCCI. The claimants successfully obtained those documents pursuant to CPR rule 31.17. 37. In relation to the interpretation of rule 31.17(3)(a) Lord Justice Chadwick, delivering the judgment at the Court of Appeal, said this: “29.

“As to the second question, it is not uncommon for ‘likely’ to mean something less than probable in its strict sense. It seems to me that if I am wrong about the first question, then it is plain that ‘likely’ must be given its more extended and open meaning (see Lord Denning MR in Dunning v United Liverpool Hospitals’ Board of Governors [1973] 1 WLR 586), because otherwise one of the fundamental purposes of the statute will have been undermined. If, however, I am right about the first question, the second question is of less moment. Even so, however, I am inclined to answer it by saying ‘likely’ here means no more than ‘may well’. Where the future has to be predicted, but on an application which is not merely pre-trial but pre-action, a high test requiring proof on the balance of probability will be both undesirable and unnecessary: undesirable, because it does not respond to the nature and timing of the application; and unnecessary, because the court has all the power it needs in the overall exercise of its discretion to balance the possible uncertainties of the situation against the specificity or otherwise of the disclosure requested. Clearly, the narrower the disclosure requested and the more determinative it may be of the dispute in issue between the parties to the application, the easier it is for the court to find the request well-founded, and vice versa.”

“Temptations to gloss the statutory language should be resisted. The jurisdictional threshold is not, I think, intended to be a high one.” 31 Mr Hollander submitted that the judge was wrong to place reliance on those observations. It is said that there is no real parallel between the provisions relating to pre-action discovery which were under consideration in Black v Sumitomo Corporation [2002] 1 WLR 1562 and the provisions relating to discovery against third parties which fall for consideration in the present case. We reject that submission. It seems to us that there is a close parallel between rules 16 and 17 in CPR Part 31; as there is between the statutory provisions to which those rules are respectively intended to give effect. In particular, it is plain that the word “likely” has a common root in the provisions of sections 31 and 32 of the Administration of Justice Act 1970; that that word is used in the same sense wherever it appears in sections 33(2) and 34(2) of the Supreme Court Act 1981; and that that word is used in the same sense in CPR r 31.16(3)(a) and (b). It would be remarkable if the rule-making body had intended the same word to be understood in a different sense in rule 31.17(3)(a). 32 In those circumstances, unless there were reasons which compelled a different conclusion, we would think it right to reject the submission that the word “likely”, in the context of the threshold condition in rule 31.17(3)(a), means “more probable than not”; and to hold that the word has, in that context, the meaning “may well” which this court thought it should bear in rule 31.16(3)(a) and (b). We are not persuaded that there are reasons which compel a different conclusion. Indeed, it seems to us that the reasons which led this court to reach the conclusion which it did in Black v Sumitomo Corporation have equal force in the context of rule 31.17(3)(a). As Rix LJ pointed out, a high test requiring proof on the balance of probability would be both undesirable and unnecessary, for the reasons which he gave.” 38. In the light of Three Rivers, I shall construe the operative words in rule 31.16(3)(a) as meaning “the documents … may well support the case of the applicant or adversely affect the case of one of the other parties”

“14.106: The second jurisdictional condition, that disclosure is necessary in order to dispose fairly of the claim or to save costs, should give rise to fewer problems. In most cases it is likely to involve considerations such as whether the documents add significantly to what is already known, or whether the likely benefits of disclosure justify the expense. But in some cases the court may need to strike a balance between the applicant’s need for access to the documents and some other competing interest, such as public interest immunity. On occasion the court may have to balance the applicant’s need for particular documents against the respondent’s legitimate interest in keeping them private. Privacy does not provide immunity from disclosure, but the court is entitled to consider whether it is necessary to infringe a person’s privacy in order to enable a party to legal proceedings to prosecute his case. There may well be circumstances where the incursion into the non-party’s privacy would be so great and the benefits of disclosure so small that the court would decline to order disclosure. 14.107: Although the scope of documents that a non-party may be required to disclose under such an order is wider than the documents that a non-party may be required to produce in response to a witness summons under CPR 34.2, the court must take great care not to impose too heavy a burden on non-parties … 14.108: The jurisdictional conditions of CPR 31.17(3) are necessary conditions, not sufficient conditions. An applicant that establishes the conditions will not necessarily succeed because the final decision will depend on the court’s assessment of the competing interests of the party and the non-party. The court has to have regard not only to the interests of the party seeking disclosure but also the non-party’s interest in protecting his privacy, confidentiality or other interests.”