Three Rivers District Council v Governor and Company of the Bank of England (No 4)

For non-party disclosure under CPR 31.17(3)(a), likely means may well. It does not mean more probable than not, although it requires a higher threshold than a merely fanciful prospect. The threshold is assessed in its procedural context and is followed by a discretionary jurisdiction.

A class of documents may be ordered to be disclosed only if every document in the class is likely to support the applicant’s case or adversely affect another party’s case. Documents may nevertheless prove, after inspection and in context, to have no probative value. Control for disclosure requires a present right to possession, inspection or copying; participation in arrangements for an independent inquiry does not itself confer such a right.

Former depositors in BCCI brought proceedings alleging misfeasance in public office by officials of the Bank of England. They sought disclosure of the archive created for Lord Justice Bingham’s inquiry into the supervision of BCCI.

Mr Justice Tomlinson held that the archive was not within the Bank’s control for CPR purposes, but declared that the threshold in CPR 31.17(3)(a) was met for defined material held by HM Treasury. The Treasury appealed the latter declaration. The claimants appealed the ruling on the Bank’s control of the archive, although they did not press that appeal if the Treasury’s appeal failed.

The central issues were the meaning of likely in CPR 31.17(3)(a), the permissible scope of a class-based non-party disclosure order, and whether the Bank had control of the archive.

1. Both appeals were dismissed. The Court upheld the declaration that the material sought from HM Treasury satisfied CPR 31.17(3)(a). It also upheld the conclusion that the Bank was not obliged to disclose the Bingham Inquiry archive.

2. Under Civil Procedure Rules r 31.17(3)(a), likely does not mean more probable than not. Following the approach in Black v Sumitomo Corporation, the appropriate meaning is may well. The threshold is modest because it conditions a discretionary power and concerns documents which the applicant and non-party may not have seen. It is, however, a higher threshold than the realistic rather than fanciful prospect required by the express real prospect tests elsewhere in the Rules.

3. The rule does not require proof that a document will in fact support the applicant or damage another party’s case. It is sufficient that it is likely to do so. Nor is an order barred because the document may instead support another party’s case.

4. The Court followed American Home Products Corporation v Novartis Pharmaceuticals. A non-party cannot be ordered to disclose a composite class containing documents that fail the statutory threshold. Yet a properly defined class may be disclosed where every document, considered individually and in its context as part of the class, is likely to meet that threshold. Some documents may ultimately yield no probative material without invalidating the order.

5. The judge was entitled to treat the Bingham report and appendices as evidence of what the defined sub-classes of archive material were likely to contain. Given the focused scope of the inquiry and the pruning of the request, he was entitled to conclude that the scheduled material met r 31.17(3)(a). Questions of confidentiality, public interest immunity, necessity under r 31.17(3)(b), and inspection remained for later determination.

6. For disclosure under r 31.8, control depends on present physical possession or a present right to possession, inspection or copies. The Bank had never acquired such rights over documents held independently by the inquiry and later transferred to the Public Records Office. Its consultative representation on an access committee did not give it control. The Bank therefore had no obligation to disclose the archive.

• Court of Appeal (Civil Division) — dismissed HM Treasury’s appeal against the declaration under CPR 31.17(3)(a), and dismissed the claimants’ appeal against the declarations that the archive was not in the Bank’s control and need not be disclosed.
• Commercial Court — Mr Justice Tomlinson, by an order of 31 May 2002, made those declarations after hearing the competing disclosure applications.