Toussaint & Anor v Mattis

In exercising case-management powers concerning confidential information, the court must identify the issues requiring determination and consider whether a fair trial can proceed without disclosure. Disclosure should be ordered only where the information is relevant to issues requiring determination at that stage and disclosure is necessary to do justice between the parties. The court should consider whether other issues can be tried first, including on appropriate assumptions, so as to avoid disclosure. An enforceable contractual promise of confidentiality is a material consideration: justice does not require the bargain to be broken merely because disclosure would assist a party’s defence. Appellate courts should allow trial judges, particularly case managers, a generous margin of appreciation.

The claim arose from a written agreement under which the appellants undertook to recover a stolen painting in return for a share of the sale proceeds. The respondent alleged that the agreement was illegal because the recovery involved handling stolen property. The appellants relied on an express or implied term protecting the identity of an intermediary through whom the painting was recovered.

The first-instance judge ordered disclosure of the intermediary’s identity, applying the question whether disclosure was necessary to do justice between the parties. The appeal concerned whether disclosure should be required before trial, having regard to confidentiality, possible danger to the intermediary, the alleged contractual term, and the respondent’s illegality defence.

1. Appeal allowed. The appellants were not required at that stage to disclose the intermediary’s identity. The disclosure issue was remitted to the trial judge for further case-management directions. The respondent was ordered to pay the appellants’ costs of the appeal.

2. The application was made under CPR Rule 18(1), subject to the overriding objective in CPR Rule 1(1). The court’s case-management powers under CPR Rules 1.4(1) and 1.4(2) were wide and flexible. Although appellate review of a case-management discretion was limited, the first-instance judge had not separately considered the alleged contractual term of confidentiality, its implications, or whether disclosure was genuinely relevant to issues requiring determination at that stage.

3. The court adopted the approach in Science Research Council v Nassé [1980] AC 1028: the court must assess the strength and value of the interest in confidentiality, the damage caused by disclosure, and whether the objective of disposing fairly of the case can be achieved without disclosure. The question was one of judicial judgment rather than a mechanical balancing exercise.

4. The court should identify the issues before trial and consider whether some could be tried first, if necessary on assumptions, without revealing the intermediary’s identity. Disclosure might be unnecessary, or might properly be deferred until the existence and enforceability of the alleged contractual term had been determined. If disclosure created serious risks, it should be ordered only where necessary to do justice. An enforceable confidentiality term would ordinarily require the court to uphold the parties’ bargain rather than disclose information merely because it would assist the defence.

5. Even if all issues were to be heard together, disclosure should not automatically precede consideration of evidence. The court could not satisfactorily determine the issue on pleadings alone and might need to assess the relative strengths of the parties’ cases after the trial had begun. The parties were directed to submit proposals identifying the issues, their order of determination, and further case-management directions.

• Court of Appeal (Civil Division): Permission to appeal granted and appeal allowed. The order requiring disclosure at that stage was set aside, and the issue was remitted to the trial judge.
• High Court: Toulson J had ordered disclosure of the intermediary’s identity as part of preliminary case-management directions.