Fox v Boulter

Disclosure is governed by the pleaded issues and proportionality. Standard disclosure requires a reasonable search for documents on which a party relies, which adversely affect a party’s case, or which support another party’s case. It does not require the indiscriminate disclosure of background material.

Specific disclosure and non-party disclosure are exceptional remedies. The court must consider whether the documents are likely to assist the applicant or adversely affect another party, whether disclosure is necessary for the fair disposal of the claim or to save costs, and whether the exercise would be proportionate. Unlimited resources cannot be devoted to litigation merely because further searching might reduce the risk of error.

This was an interlocutory disclosure application in a libel action brought by Dr Liam Fox against Harvey Boulter. The Cabinet Office, the Ministry of Defence and Adam Werrity were respondents to the applications for non-party disclosure.

The trial was due to begin shortly. The applications sought wide-ranging documents concerning Dr Fox, Mr Werrity, their relationship, and matters connected with the underlying allegations. Dr Fox was also asked to identify documents formerly within his control. The central issues in the pending libel action concerned what was said at meetings in April to June 2011 and whether Mr Boulter was led to believe that Mr Werrity spoke for Dr Fox or the Government.

1. Applications dismissed. The disclosure sought from Dr Fox, the Cabinet Office, the Ministry of Defence and Mr Werrity was not necessary for the fair disposal of the libel action and would not save costs.
2. Under CPR r31.6 and r31.7, standard disclosure is confined to documents on which a party relies, documents adversely affecting a party’s own or another party’s case, and documents supporting another party’s case. The court must assess potentially relevant documents by reference to the statements of case. The reasoning in Nichia Corp v Argos Ltd [2007] EWCA Civ 741 was adopted: the CPR requires a reasonable, proportionate search and does not justify the indiscriminate disclosure of background documents.
3. Dr Fox had conducted a reasonable search. His resignation from office, the passage of time, the routine destruction of electronic material, and the fact that he and Mr Werrity had discussed many matters unrelated to the litigation meant that a further search would not be consistent with the overriding objective.
4. For non-party disclosure under CPR r31.17, the documents must be likely, in the sense that they may well, to support the applicant’s case or adversely affect another party’s case. Disclosure must also be necessary to dispose fairly of the claim or to save costs. Three Rivers DC v Bank of England (No 1) [2003] 1 WLR 210 and Frankson v Home Office [2003] 1 WLR 1952 establish that non-party disclosure is exceptional and should not be ordered routinely.
5. The overriding objective under CPR r1.1 requires justice at proportionate cost. The court must have regard to the importance and complexity of the case, the sums involved, the parties’ positions, the burden on litigants and the proper allocation of court resources. A possibility that further resources might produce a different result does not justify unlimited investigation.
6. The requested classes were too wide and vague. They were likely to include documents outside the proper scope of disclosure and would divert the parties’ and the court’s resources from the real issues. The exercise would be disproportionate and, for Mr Werrity, oppressive.

This was a first-instance interlocutory decision in the libel action. The judgment records an earlier ruling on meaning by Bean J dated 4 June 2013, [2013] EWHC 1435 (QB).