Lindner v Rawlins

In family proceedings, applications for disclosure against a non-party are governed by the Family Procedure Rules 2010, not the Civil Procedure Rules 1998. An order may be made only where disclosure is necessary to dispose fairly of the proceedings or to save costs. Necessity has an imperative meaning. Relevance or potential usefulness is insufficient. Non-party disclosure is exceptional and the jurisdiction must be exercised with caution. Appellate courts should be slow to interfere with case-management assessments of necessity, particularly where substantial relevant material is already available.

The husband appealed against case-management directions given by Her Honour Judge Atkinson in divorce proceedings. He sought an order requiring Wiltshire Police to disclose a statement allegedly made by a woman identified as the wife’s friend. The statement was said to support allegations that the wife had engaged in multiple lesbian relationships and to undermine her credibility.

The judge refused the application. The husband had not served the police with notice, and other material, including emails and advertisements, was already available. The central issue was whether non-party disclosure was necessary for the fair disposal of the divorce proceedings or to save costs, and whether the Court of Appeal should interfere with the case-management decision.

The appeal was dismissed unanimously. Black LJ gave the principal judgment. Aikens and King LJJ agreed.

1. Applications for disclosure against a non-party in divorce proceedings fall under the Family Procedure Rules 2010. Divorce proceedings are family proceedings within section 32 of the Matrimonial and Family Proceedings Act 1984. By Rule 2.1(2), the Civil Procedure Rules 1998 do not apply except where another enactment applies them.
2. Part 21 of the Family Procedure Rules 2010 distinguishes disclosure from inspection. Disclosure means stating that a document exists or has existed. Inspection is permission to inspect a disclosed document. A non-party application may be made without notice and must be supported by evidence. An order may be made only where disclosure is necessary to dispose fairly of the proceedings or to save costs.
3. Necessity has an imperative meaning, lying between indispensability and mere usefulness, reasonableness or desirability. The court has a wide discretion. Non-party disclosure is exceptional and the jurisdiction must be exercised with caution. The approach to disclosure by a party described in Durham County Council v Dunn [2012] EWCA Civ 1654, including the strict-necessity test for denying disclosure, did not govern this different procedural question.
4. Although the requested statement might have had some relevance to an issue or to credibility, it would establish at most one relationship. It would not establish the pleaded allegation of multiple relationships for money or kind. The extensive material already available was more directly relevant, and ordering disclosure could have generated further litigation about inspection and confidentiality. The necessity threshold was therefore not met.
5. The police had not been given notice. Disclosure alone would establish whether a statement existed, whereas obtaining a copy would require the police to participate and might lead to a dispute about withholding inspection. If the maker were unavailable, the statement would in any event be hearsay.
6. The decision was a case-management decision. Applying the guidance in Re H–L (Expert Evidence: Test for Permission) [2013] EWCA Civ 655; [2013] 2 FLR 1434, the Court of Appeal should be very slow to interfere with an assessment of necessity. The judge was entitled to refuse the order.

• Court of Appeal (Civil Division): The appeal against the refusal of non-party disclosure was dismissed unanimously.
• Bromley County Court: Her Honour Judge Atkinson refused the husband’s application for an order requiring Wiltshire Police to provide the requested statement.