Thomson v Berkhamsted Collegiate School

In an application ancillary to a non-party costs claim under section 51 of the Supreme Court Act 1981 and CPR 48.2, the court may order targeted disclosure where necessary for the fair determination of essentially summary proceedings. The court should apply a high threshold of necessity, informed by the overriding objective, rather than adopt the disclosure rules for a full trial. Relevant considerations include the apparent strength of the costs application, the likely probative value of the documents, the likelihood of legal professional privilege, and proportionality. Communications between a non-party funder and the claimant’s solicitors or experts will not ordinarily be privileged merely because the non-party funded the litigation. Non-compliance may justify strong adverse inferences.

The claimant discontinued a negligence claim against his former school during trial. The school obtained an order for the claimant to pay its costs and applied under section 51 of the Supreme Court Act 1981 and CPR 48.2 for a non-party costs order against the claimant’s parents, who had funded the litigation and had been involved in its conduct. The parents resisted disclosure of communications with the claimant’s solicitors, counsel and experts, relying on legal professional privilege and proportionality.

The issue was whether ancillary disclosure and, if necessary, inspection should be ordered to enable the court fairly and economically to determine the substantive non-party costs application.

1. Orders made. The court confirmed its jurisdiction to make ancillary disclosure orders in CPR 48.2 proceedings. The procedure is intended to be summary, but that does not prevent orders needed for an expeditious and fair determination. The power derives from the court’s inherent jurisdiction, the overriding objective and its general powers under the CPR.
2. The court should apply a high test of necessity. It should not simply adopt the disclosure regime applicable to a full trial. The relevant considerations were: the apparent strength of the costs application without disclosure; the likely value of the documents and whether they were highly probative or would create satellite litigation; the apparent likelihood of legal professional privilege; and whether the proposed order would be proportionate and just.
3. The school had a good arguable case for a non-party costs order. The parents appeared to have had a personal interest in the dispute and had intervened beyond merely providing funds. That evidence made communications bearing on their control, interference or assumption of responsibility potentially important.
4. Disclosure was confined principally to the period from February 2005, when the claimant’s solicitors were instructed, to 16 March 2009. Communications between a solicitor and a third party would not normally attract privilege unless immediately connected with that third party’s witness statement or with legal advice to the claimant. Communications with experts would not normally attract litigation privilege. Documents might differ where the parents acted strictly as the claimant’s agents, and that question required analysis of the documents.
5. Documents were to be individually identified where practicable, with information sufficient to assess the basis of any privilege claim. The court might inspect disputed documents privately. Failure to comply or to co-operate in good faith was likely to lead to strong adverse inferences. Costs of the application were reserved.