Sarayiah v Royal And Sun Alliance & Ors

Third-party disclosure under CPR 31.17 requires a flexible assessment of necessity in the circumstances of the particular case. The possible availability of disclosure from another source is relevant but is not determinative or an absolute bar. The court must consider all relevant circumstances, including the applicant’s resources, the conduct of other parties, delay, expense and the practical uncertainty of an alternative application. Where the documents may well support the applicant’s case or adversely affect another party’s case, and disclosure from the third party is necessary to dispose fairly of the claim, the court may exercise its discretion to order disclosure. The jurisdiction remains exceptional and must be exercised with caution.

The appellant brought proceedings against his sisters under section 3 of the Protection from Harassment Act 1997. He sought disclosure from RSA of a recording of a telephone conversation concerning an insurance policy. The County Court dismissed his application under CPR 31.17 and 31.18, holding that it was misconceived because he should have applied for specific disclosure against his sisters under CPR 31.12. The appellant made that further application, but it was dismissed on the basis that the recording was not in the sisters’ control. He appealed the original refusal and challenged the approach to necessity, control and the overriding objective.

1. Appeal allowed. The first-instance judge had treated the potential availability of an alternative application under CPR 31.12 as effectively precluding consideration of the application under CPR 31.17. That was a misdirection.
2. Necessity under CPR 31.17(3)(b) is a flexible concept to be assessed in the light of all the circumstances. The existence of another possible source is relevant, but does not constitute an absolute or almost insuperable obstacle. The court must also consider matters such as the applicant’s resources and circumstances, the cooperation of other parties, delay, expense and whether the alternative route is itself problematic. The jurisdiction remains exceptional and should be exercised cautiously.
3. The requirement in CPR 31.17(3)(a) is satisfied where the documents may well support the applicant’s case or adversely affect another party’s case. A balance-of-probabilities showing is unnecessary.
4. On the evidence, the recording was relevant to the harassment claim. The appellant was an impecunious litigant in person, his sisters had been uncooperative, and a further application under CPR 31.12 involved uncertainty, delay and additional expense. Those circumstances made disclosure from RSA necessary to dispose fairly of the claim. The later fact that the sisters may have obtained a copy did not itself prevent an order under CPR 31.17.
5. The court therefore exercised its discretion itself, rather than remitting the matter, and ordered RSA to disclose the recording and the specified related documents.

• High Court (Chancery Division): allowed the appeal from the order of HH Judge Freeland QC dated 25 May 2017. The High Court made the CPR 31.17 disclosure order itself.
• County Court of Central London: dismissed the application under CPR 31.17 and 31.18, described it as misconceived and totally without merit, and ordered costs of £4,000.