NON-PARTY DISCLOSURE: THE EXCEPTION RATHER THAN THE RULE
The court's discretion as to whether to order disclosure against non-parties to litigation is critical, even where the threshold criteria are satisfied. The jurisdiction is to be exercised with caution. If you want disclosure from a non-party try to draft the order so compliance will be straightforward.
The Tinkler decision emphasises the wide discretion of the court and the flexibility it has when considering an application for non-party disclosure, having regard to all the circumstances of the case, and particularly the amount of work to be done by the non- party in providing disclosure . The court confirmed that an order for non-party disclosure under CPR 31.17 is the exception rather than the rule, and approved the structured approach previously set out in Constantin Medien Ag v Ecclestone and others  EWHC 2674 (Ch), which laid down a three-part sequential test the court must consider before granting a non-party disclosure order.
Stobart Group brought proceedings against Mr Tinkler, a former director and employee, for breach of fiduciary duty. Judgment in favour of Stobart was handed down in February 2019 (Underlying Judgment). Mr Tinkler subsequently issued proceedings to set aside the Underlying Judgment on the grounds that it had been obtained as a result of fraud, in particular the deliberate non-disclosure of highly relevant documents by Stobart and the provision of knowingly false evidence by Stobart's Chairman and CEO.
Mr Tinkler argued that the fraud came to light after the Underlying Judgment was given and as a result of separate proceedings before an Employment Tribunal, in which a large number of material documents that had not been disclosed in the earlier proceedings were identified.
Mr Tinkler therefore issued an application for non-party disclosure under CPR 31.17 against three individuals, two of whom consented to the application and one of whom contested it (Mr Soanes). Mr Tinkler sought three classes of documents within the period 1 November 2017 – 29 November 2018 sent or received by a list of persons relating to:
1) the provision of any loan to Mr Soanes for the purpose of funding any and all historic or ongoing legal proceedings against Mr Tinkler and / or Stobart;
2) Mr Tinkler and the earlier proceedings in general; and
3) the issues for disclosure in the fraud proceedings between Mr Tinkler and Stobart, as ordered by Master Pester on 8 June 2021.
KEY LEGAL POINTS
CPR 31.17(3)(b) requires that non-party disclosure be ordered only where "necessary in order to fairly dispose of the claim or to save costs." The court's discretion is paramount, even where the criteria of relevance and necessity are satisfied, so it may decide not to order such disclosure even where the criteria are met.
The High Court approved the 3-stage approach set out in Constantin, which involves three questions:
1) Are the documents and classes of documents sufficiently specified to be permissible under CPR 31.17?
2) Are those documents likely to support the applicant's case or adversely affect the defendant's case?
3) Is disclosure necessary to dispose fairly of the claim, or to save costs and should it be ordered as a matter of discretion?
It is of utmost importance that the non-party knows what he has to disclose and that the non-party is not compelled to familiarise himself with the issues in the underlying litigation. The court must also be satisfied that the documents sought do in fact exist: it is not appropriate for the non-party to have to conduct a search before it can be satisfied that no such documents exist.
In this case, it was accepted that the classes of documents requested by Mr Tinkler were sufficiently specified as required by CPR 31.17(4)(a). He argued that the disclosure would support his case because, among other things, there was no good reason for Mr Soanes to be discussing Mr Tinkler and the earlier proceedings with senior individuals at Stobart.
Mr Soanes's primary submission was that the disclosure sought was speculative and not based on the pleaded case in the proceedings challenging the Underlying Judgment. He also argued that complying with the order sought would require him to search and catalogue a large volume of material which could potentially be of no relevance to the claim, and the costs of that exercise may not be recoverable.
The court granted the order for disclosure in respect of the first category of documents sought, having satisfied itself that the test was met, and also required that deleted messages from the "Telegram" service were disclosed. But it declined to grant the order for disclosure in respect of the second category of documents, on the basis that in order to comply, Mr Soanes would be under an obligation to familiarise himself with the details of the earlier proceedings; similarly in respect of the third category of documents sought the court refused to order disclosure on the basis that the request was insufficiently particularised and not necessary to dispose fairly of the proceedings.
MOBILE PHONE PROVIDERS DID NOT HAVE TO PROVIDE RECORDS TO ASSIST INSURER
The Court of Appeal has upheld the High Court's refusal to order disclosure of information under the Norwich Pharmacal jurisdiction to identify the location of a mobile phone holder through mobile call records and cell site data.
In an application for Norwich Pharmacal relief against a mobile phone provider for disclosure of mobile phone records, the provider's engagement with the wrongdoing of the policy holder's relative was held not to make it more than a mere witness and so the principles of Norwich Pharmacal relief were not engaged. The decision provides useful insight into how similar relief might be utilised against mobile phone providers in, at least, cases involving insurance fraud.
EUI Ltd (the Insurer) had been paying the displacement costs of the policy holder pursuant to a home insurance policy, as a result of flooding at the policy holder's insured property which lead to the policy holder having to live at a different address. The policy capped the displacement costs at £1,000 per month when the policy holder was living with relatives.
Under the terms of the policy, the Insurer did not have to pay out in the event of fraud.
The policy holder took out a tenancy agreement for £1,850 per month. The Insurer became concerned about the genuineness of the tenancy and suspected that the policy holder and his family were in fact living with the policy holder's parents. The policy holder's position was that his parents had moved out and were staying with relatives in Milton Keynes, with a view to going to India, but in fact had returned home owing his mother being unwell.
The Insurer applied for a Norwich Pharmacal order against Vodaphone, which sought mobile phone and data information for the policy holder's mother, to ascertain whether she had in fact gone to Milton Keynes. In particular, the Insurer was seeking call records and cell site data which showed the location of her mobile phone during the period in question.
KEY LEGAL POINTS
The equitable remedy of a Norwich Pharmacal order requires a respondent to disclose certain documents or information to the applicant. It is often sought pre-action as a means of identifying the proper defendant to an action or to obtain information to plead a claim. Typically, Norwich Pharmacal relief is not available against a respondent who is likely to be a party to the potential proceedings, but the respondent must be either involved or mixed up in a wrongdoing (whether innocently or not) and not be a "mere witness" or "bystander".
As a Norwich Pharmacal order is an equitable remedy, it will only be granted where necessary in the interests of justice.
The Court of Appeal, in agreeing with the High Court, dismissed the Insurer's main argument that mobile phones have enabled people claiming to live at one address to live at another, and so elevating mobile phone providers beyond the position of a "mere witness". The fact that the mobile phone holder could pretend they were located somewhere they were not did not mix the mobile phone company into the wrongdoing.
Although the mobile phone records could assist in establishing the truth of the policy holder's parents' whereabouts, the phone company was a mere witness in that regard, so the requirements for Norwich Pharmacal relief were not met. However, the Court of Appeal opined that it is possible that, if the Insurer did bring a claim against the policy holder, it might be able to obtain an order against the mobile phone company for disclosure of the records sought under CPR 31.17 (order for disclosure against a person not a party), provided that the Court was persuaded that disclosure was necessary in order to dispose fairly of the claim.