First Subsea Ltd v Balltec Ltd & Ors

The court has jurisdiction under CPR 31.12 to order disclosure of documents relevant to a witness’s credibility in an exceptional case. Such disclosure is not ordinarily appropriate because credibility documents generally fall outside standard disclosure. The jurisdiction should be exercised only where disclosure is necessary for justice. In deciding whether further disclosure is required, the court should assess the nature of the issues, the extent of disclosure already given, the extent to which documents assisted recollection, and the centrality of the evidence to the earlier proceedings. Existing cross-examination and the witness’s answers may make further disclosure unnecessary. General fairness considerations may justify disclosure, but they did not do so on these facts.

During the trial of claims by First Subsea Limited against Balltec Limited and others, the claimant relied on evidence and admissions from earlier Manchester proceedings involving Mr Emmett and Mr Halstead. Shortly before trial, the claimant disclosed that an associated company had lent Mr Halstead’s company £80,000. The defendants sought documents concerning the loan’s origin and repayment, arguing that they were relevant to the weight of the earlier evidence, Mr Halstead’s credibility, and possible misuse of the earlier proceedings. The claimant argued that there was no jurisdiction, no factual basis, and that disclosure would be disproportionate. The central issue was whether further disclosure should be ordered under CPR 31.12.

1. The application for specific disclosure was refused. The court did not order production of documents concerning the genesis, repayment, or release of the loan arrangement.
2. The relevance of the loan to the weight of admissions made in the Manchester proceedings depended on the nature of the issues in that action, the extent of disclosure there, the assistance that documents gave to the parties’ recollections, and the centrality of the answers to the real issues. The reasons why questions were asked, including the source of Mr Halstead’s funding, were not materially relevant to that assessment.
3. Favor Easy Management v Wu established that disclosure relating to credibility would not ordinarily be ordered because it generally fell outside standard disclosure under CPR 31.6. The court accepted that the decision also recognised a real argument that CPR 31.12 could permit disclosure of credit-related documents in an appropriate case, although that issue had not been decided there.
4. The court held that exceptional jurisdiction existed under CPR 31.12, read with the court’s power under CPR 31.5 to order disclosure to the extent necessary for justice. This was not an appropriate case for its exercise. Mr Halstead’s credibility could be assessed through the material already elicited in cross-examination, including evidence about the loan, together with his answers and demeanour.
5. Fairness did not require further disclosure. Although the claimant had made limited voluntary disclosure and resisted wider disclosure, the defendants could address in closing the extent of the information available and its possible effect on the reliability of the Manchester admissions. The application was therefore refused.