WH Holding Ltd & Ors v E20 Stadium LLP

Non-party disclosure under CPR 31.17 requires both a real likelihood that the documents will support the applicant’s case or adversely affect another party’s case, and necessity for the fair disposal of the claim or saving costs. The court cannot order disclosure of a composite class containing both relevant and irrelevant documents. A request must therefore define the class positively and exclude merely administrative, background or train-of-inquiry material. The exceptional nature of third-party disclosure requires special justification, but an order may be appropriate where the non-party was closely involved in the relevant events and is likely to hold documents not duplicated by the parties.

West Ham applied for non-party disclosure from London Stadium 185 Limited, the stadium operator and E20’s agent, in proceedings concerning whether E20 was obliged to seek an increased General Safety Certificate capacity. The application concerned emails, a meeting note, a specified email and work diaries. A separate application was made against the London Borough of Newham, whose employee chaired the Stadium Safety Advisory Group.

The central issues were whether the requested documents satisfied the relevance and necessity conditions in CPR 31.17, whether the categories were sufficiently confined, and whether the disclosure exercise would be disproportionate or impracticable before trial.

1. The application was granted in part and in amended form. Category 2 was not pursued after confirmation that the requested document was already identified. Category 4, seeking work diaries, was refused.
2. CPR 31.17 permits an order only where the documents are likely to support the applicant’s case or adversely affect another party’s case, and disclosure is necessary to dispose fairly of the claim or save costs. As explained in American Home Products v Novartis [2001] FSR 784 and Three Rivers DC v Bank of England [2003] 1 WLR 210, a class cannot include documents that fail this threshold.
3. The proposed Category 1 was too wide because it would capture administrative emails concerning the mechanics or form of an application. It was reformulated to cover emails addressing the substantive contents, merits or reasons for E20’s decision not to apply for an increased certificate. Such material was likely to assist the issues at trial, including the actual operator’s views.
4. Third-party disclosure required special justification, but that requirement was met. LS185 was closely involved as E20’s agent, E20 had disclosed few documents concerning the critical board decision, and relevant material might not be duplicated elsewhere. The limited custodians, date range and search terms made the exercise proportionate.
5. Category 3 was allowed because a note of the January meeting, if it existed, was tightly focused and relevant. If relevant emails or notes had been destroyed, LS185 was required under CPR 31.17(5) to provide an unambiguous explanation, verified by a witness statement from its chief executive. Disclosure was ordered by 4 pm on 13 November 2018, subject to liberty to apply.