Favor Easy Management Ltd & Anor v Wu & Anor

Under Civil Procedure Rules 1998 r 31.6, standard disclosure does not extend to documents whose only relevance is a party’s credit as a witness. That limitation prevents oppressive and disproportionate searches for cross-examination material, despite the rule’s broad ordinary language.

A party does not rely on a document for r 31.6(a) merely by mentioning it defensively in cross-examination. The court left open whether specific disclosure under r 31.12 may exceptionally reach credit material. Any such application requires consideration of proportionality and the overriding objective.

The claimants sought declarations that a London hotel and adjoining property were held on trust for them or for Mr Lee. During the trial before Norris J, the dispute included whether Ms Wu had been pregnant and whether a medical certificate had been forged. Those matters were relevant only to her credibility.

After Ms Wu withdrew consent for two Hong Kong doctors to release their files, the claimants contended that the records should have been disclosed under Civil Procedure Rules 1998 rr 31.6 and 31.11. Norris J refused the application during the evidence. The claimants appealed, raising whether medical records concerning a witness’s credibility were subject to standard disclosure and whether Ms Wu’s reference to another certificate altered that position.

Decision

1. The court unanimously dismissed the appeal. Lord Neuberger MR gave the principal judgment; Patten LJ agreed and added observations on procedure, and Black LJ agreed with both judgments.

2. The court proceeded on the assumption, without deciding, that the doctors’ files were within Ms Wu’s possession, custody or control for Part 31 purposes. There was nevertheless a substantial argument to the contrary, potentially governed by Hong Kong law. The records concerned pregnancy and alleged certificates, which could affect only Ms Wu’s credit and not prove or disprove the alleged sexual relationship.

3. The limitation recognised in Thorpe v Chief Constable of Greater Manchester Police [1989] 1 WLR 665 remained good law under Civil Procedure Rules 1998 r 31.6. Standard disclosure does not require documents directed solely to cross-examination on credit. The broad wording of r 31.6(b) did not displace that established limitation, whose purpose is to keep disclosure within reasonable and proportionate bounds.

4. Ms Wu had not relied on Dr Yeung’s alleged certificate within r 31.6(a). She had referred to it only as a shield while being cross-examined. Treating that reference as reliance would circumvent the credit-only limitation and permit disclosure as of right whenever a document was mentioned in cross-examination.

5. The court did not decide whether r 31.12 could permit specific disclosure of credit material in an appropriate case. It doubted that such an order would have been appropriate here, given the delay and the available evidence. Patten LJ added that an application for specific disclosure is ordinarily the proper response to inadequate disclosure of an otherwise disclosable document, and must be assessed under the overriding objective and proportionality.

• Court of Appeal (Civil Division) — dismissed the claimants’ appeal in [2010] EWCA Civ 1630.
• High Court of Justice, Chancery Division (Norris J) — during trial, refused the claimants’ application concerning disclosure of the doctors’ records. No citation for that ruling was stated.