PCP Capital Partners LLP & Anor v Barclays Bank Plc

An order for third-party disclosure is justified where the documents are necessary for the fair disposal of the claim or to save costs. The fact that the defendant intends to disclose relevant documents later does not necessarily remove that necessity. The court may require early disclosure where delay would obstruct the proper pleading of the case, generate pointless correspondence or cause further costs. The defendant is ordinarily the proper disclosing party where it has possession of the documents, but an order may be made against the third party holding copies if the defendant objects on procedural grounds.

The claimants applied under CPR 31.17 for disclosure by Mr Richard Boath, a former Barclays employee, of two categories of documents held by him after being provided by Barclays in connection with Serious Fraud Office investigations.

Barclays accepted that it possessed the documents, that they were relevant and that they would shortly be disclosed as part of standard disclosure. It argued that a third-party disclosure order was therefore unnecessary and that any application for early disclosure should be made against Barclays. The issue was whether immediate disclosure was necessary to dispose fairly of the claim or to save costs.

1. Application granted in substance. The court held that the documents should be provided promptly. Barclays was the appropriate party to disclose them because it had possession of the documents. If Barclays objected on the basis that no application had been made against it, the court would make the order against Mr Boath.
2. Under CPR 31.17, third-party disclosure is available only where it is necessary to dispose fairly of the claim or to save costs. Necessity is assessed in the practical circumstances of the litigation, including the effect of delay, the importance of the documents and the costs generated by withholding them.
3. The 30 October emails were closely connected with allegations that Barclays had made dishonest representations. Barclays knew which documents were relevant and was demanding their production while resisting early access to documents in its own possession. Immediate disclosure was necessary to allow the claimants to correct their pleading if required and to provide documents on which they intended to rely. Deferral would have caused pointless correspondence and further costs.
4. The offline documents were not referred to in the particulars of claim and would ordinarily have been disclosed with standard disclosure. However, Barclays’ correspondence had created a genuine misunderstanding about whether the documents were in its possession. Barclays clarified their existence and relevance only at the hearing, after the application had already proceeded. In those circumstances, postponing disclosure would have wasted further costs, and the documents were sufficiently important and relevant to require prompt provision.