Fanmailuk.Com Ltd & Anor v Cooper & Ors

An order for disclosure against a non-party requires the applicant to establish both relevance and necessity under CPR 31.17. “Likely to support” means that the documents may well support the applicant’s case; it does not mean more probable than not. Where a collection or class of documents is sought, each document must satisfy that threshold, considered in the context of the collection or class. Relevance alone is insufficient. Disclosure must also be necessary to dispose fairly of the claim or to save costs. Disclosure sought to advance a separate potential costs application against the non-party falls outside the purpose of CPR 31.17.

Dialtime Plus Limited applied under CPR 31.17 for disclosure from Standard Chartered Bank, which was not a party to the underlying fiduciary-duty and equitable-compensation proceedings. It sought the disclosure letter and associated documents relating to the bank’s investment in MCashback Limited, together with valuations prepared for that investment. Dialtime argued that the material would assist its claim against MCashback and might also support a possible non-party costs application against the bank under section 51 of the Senior Courts Act 1981 and CPR 48.2.

By the hearing, the claim against MCashback was expected to proceed to default judgment and an unopposed assessment. The central issue was whether the requested disclosure satisfied CPR 31.17, particularly the requirement that disclosure be necessary to dispose fairly of the claim or to save costs.

1. The application was dismissed. The court considered whether the documents were likely to support Dialtime’s case or adversely affect MCashback’s case, whether disclosure was necessary to dispose fairly of the claim or to save costs, and whether the court should exercise its power.

2. “Likely to” in CPR 31.17 means “may well”, as established in Three Rivers DC v Bank of England (No. 4) [2003] 1 WLR 210. For a collection or class of documents, each document must meet that threshold, although its relevance may be assessed in the context of the collection or class as a whole. The court should also consider whether a narrower class can be defined.

3. The first category comprised a collection of separate documents, not one composite document. The disclosure letter, disclosure bundle schedule and disclosure-bundle documents were legally and linguistically separate. The court was not persuaded that every document in the bundle was likely to support the case. The second category, consisting of valuations prepared for the share purchase, satisfied the relevance threshold.

4. Neither category satisfied the separate necessity requirement. Dialtime already possessed the essential material needed for the likely assessment of its claim against MCashback. That assessment was expected to be unopposed, and further disclosure was not necessary for a fair disposal. Nor would disclosure save costs; it would probably increase Dialtime’s costs and, under the ordinary rule, SCB’s costs of complying with an order.

5. The court explained that CPR 31.17 concerned the claim against MCashback, not the possible CPR 48.2 application against SCB. If disclosure had been ordered, the documents would have been restricted to use in the claim against MCashback unless the court later permitted use for the costs application. No decision was made on the merits of any future section 51 or CPR 48.2 application.