Twin Benefits Ltd v Barker & Anor

Non-party disclosure is available where documents may well support the applicant’s case or adversely affect another party’s case; the applicant need not show that support is more probable than not. The possibility that the documents may assist the opposing party is immaterial. Disclosure may also be ordered where the documents themselves cannot ultimately be deployed because of legal professional privilege, provided inspection may enable their contents to be proved by other means. The necessity condition is unlikely to be met where the documents are available from a party, and the jurisdiction is exceptional and must be exercised cautiously. Early disclosure may nevertheless be justified where it is likely to promote the speedy, just and efficient resolution of the dispute.

Twin Benefits sought non-party disclosure and inspection from Ms Meek, a solicitor who had acted as litigation friend for a minor beneficiary in earlier trust proceedings. The application concerned six classes of documents relating to a compromise approved in those proceedings. The principal dispute concerned whether documents covered by legal professional privilege could be disclosed for inspection, although they could not be deployed without consent against another joint beneficiary of the privilege.

The court also considered whether documents available from the defendants should instead be obtained through ordinary disclosure. The application was made before the defendants’ summary disposal applications, and Twin Benefits wished to use the documents in resisting those applications.

1. Application partly granted. Disclosure and inspection were ordered for class e, comprising communications between Ms Meek, Harcus and counsel, subject to confidentiality protections. The application was otherwise dismissed, subject to a possible further issue concerning a category of without-prejudice correspondence.
2. Under Civil Procedure Rules 1998, rule 31.17(3)(a), documents are likely to support an applicant’s case if they may well do so. It is unnecessary to show that support is more probable than not. It is also immaterial that the documents may prove as likely, or more likely, to support another party’s case.
3. The fact that documents are subject to legal professional privilege does not prevent rule 31.17(3)(a) from being satisfied. The rule’s structure contemplates disclosure where the respondent may have a right or duty to withhold inspection. The position is stronger where the applicant is entitled to inspect, although it may be unable to deploy the documents against another party without consent. Inspection may enable the applicant to prove the documents’ contents by other means.
4. For rule 31.17(3)(b), non-party disclosure is exceptional and the jurisdiction must be exercised cautiously. The condition is unlikely to be satisfied where relevant documents are available from another source. Seeking non-party disclosure merely to obtain documents earlier, or because that route appears easier than seeking early disclosure from a party, is not a proper use of the procedure.
5. Class e satisfied both limbs. The privileged documents were likely to indicate whether the interests of the relevant beneficiaries had been properly considered. Early disclosure and inspection were necessary to promote the speedy, just and efficient resolution of the dispute and might avoid a trial. Inspection was therefore ordered through an agreed confidentiality club.

First-instance application. The judgment does not state an appellate history.