Secretary of State for Transport v Pell Frischmann Consultants Ltd

For non-party disclosure, the threshold in CPR rule 31.17(3)(a) is satisfied where the documents may well support the applicant’s case or adversely affect another party’s case. They need not be more likely than not to do so, and it is sufficient that they are obviously relevant and may assist either side.

The threshold conditions are necessary but not sufficient. The court must balance the applicant’s need for disclosure against the non-party’s privacy, confidentiality, cost and practical burden. An order is generally inappropriate where the proposed non-party will shortly become a party and ordinary disclosure will cover the same documents, creating substantial duplication. The application was therefore dismissed.

The Secretary of State for Transport brought substantial claims concerning defective roller bearings in the Thelwall Viaduct against Pell Frischmann Consultants Ltd and, separately, AMEC Civil Engineering Ltd. Pell Frischmann applied under section 34 of the Supreme Court Act 1981 and CPR rule 31.17 for disclosure by AMEC, which was then a non-party.

The application concerned five broad categories of documents relating to the manufacture, specification and supply of the bearings and to the renovation works. The documents were relevant and likely to assist one or more parties. Before the application was heard, however, the arbitration between the Secretary of State and AMEC ended and new court proceedings were issued against AMEC. The central questions were whether the rule 31.17 conditions were met and whether an order remained necessary and proportionate in the changed procedural circumstances.

1. Application dismissed. The five categories of documents were relevant and satisfied CPR rule 31.17(3)(a). Following Three Rivers District Council and others v Governor and Company of the Bank of England (No 4) [2002] EWCA Civ 1182, “likely” means “may well”, rather than more probable than not. It was enough that the documents were obviously relevant and might assist either side.
2. The requirement in CPR rule 31.17(3)(b), that disclosure be necessary to dispose fairly of the claim or save costs, and the court’s discretion under rule 31.17, had to be approached differently from pre-action disclosure under rule 31.16. The court was considering whether documents should be disclosed at all, and had to balance the applicant’s need against the non-party’s privacy, confidentiality, cost and other legitimate interests. The conditions were necessary, but not sufficient.
3. The authorities concerning CPR rule 31.16(3)(d), including Black v Sumitomo Corporation [2001] EWCA Civ 1819, did not assist in interpreting rule 31.17(3)(b) or exercising the rule 31.17 discretion. The competing interests in the two types of application were fundamentally different.
4. Although the application had been well-founded when issued, the circumstances had materially changed. The arbitration had ended, AMEC had become the subject of new High Court proceedings, and consolidation or a joint trial with the existing action was inevitable. Pell Frischmann would shortly obtain standard disclosure from AMEC, which would encompass the requested categories. Ordering disclosure under the special non-party procedure would cause AMEC to conduct a substantial search twice. The benefit of earlier disclosure did not make it necessary under rule 31.17(3)(b), and the balance firmly favoured AMEC.