Clark v Ardington Electrical Services

At the disclosure stage, the court should not resolve substantive disputes in order to decide whether documents are relevant. Where a pleaded issue is realistically arguable and the documents may support the applicant’s case or adversely affect the other party’s case, the criteria for non-party disclosure under CPR 31.17 may be satisfied. The court retains a discretion whether to order disclosure and may take account of the need for a complete factual picture, particularly in a test case. The merits remain for trial, on the evidence and applicable law.

The claimant appealed, with permission, against an order for disclosure made by His Honour Judge Harris QC in the Oxford County Court. The underlying claim arose from a road collision for which liability was admitted and concerned the cost of replacement car hire, an engineer’s fee and vehicle repairs incurred through the Helphire schemes.

The defendants alleged that the credit arrangements were unenforceable, that the schemes were a sham, and that the claimant had failed to mitigate her loss. They sought documents showing what Helphire and its associated businesses had invoiced and paid to repairers and engineers. The central issue on appeal was whether those documents were relevant and whether disclosure was necessary under CPR 31.17.

1. Appeal dismissed. The court declined to determine the substantive disputes about the recoverable measure of loss, the effect of the Helphire arrangements, or the significance of Dimond v Lovell when deciding the disclosure application. Those issues were pleaded and could not be resolved summarily for the purpose of assessing relevance.
2. For a non-party disclosure order under CPR 31.17, the documents had to be likely either to adversely affect the other side’s case or to support the applicant’s case, and disclosure had to be necessary to dispose fairly of the claim or to save costs. The documents sought satisfied both limbs because they could show the amounts invoiced and paid and could bear on the pleaded allegations concerning the arrangements and the sums recoverable.
3. The judge had a discretion whether to make the order. He had directed himself correctly and had not exercised that discretion on an improper basis. The fact that the proceedings might operate as a test case, and the importance of obtaining a full picture of how the schemes worked, supported the order.
4. The court noted that reliance, without permission, on documents disclosed in other proceedings could constitute contempt of court under Harman v Home Office. In the present case the defendants maintained that they had obtained the documents independently. The observation was ancillary to the dismissal of the appeal.
5. Lord Justice Thorpe agreed with Lord Justice Tuckey’s reasons. The order was therefore: appeal dismissed.

• Court of Appeal (Civil Division): Appeal from an order made by His Honour Judge Harris QC in the Oxford County Court on 19 September 2000. The appeal was dismissed.