Gardiner v Tabe & Anor

Non-party disclosure under Civil Procedure Rules 1998, rule 31.17 requires satisfaction of three conditions: relevance, necessity and the exercise of discretion. Documents are relevant where they may well support the applicant’s pleaded case or adversely affect another party’s pleaded case. “Likely to” means “may well”, rather than more likely than not. The court must focus on the issues defined by the pleadings and cannot use disclosure to investigate an unpleaded case. In probate claims, necessity is assessed in the context of the court’s quasi-inquisitorial function, but relevance remains a threshold requirement. Disclosure may be ordered before primary disclosure or expert reports where the statutory conditions are met.

The claimant sought proof in solemn form of a will under which the deceased’s estate was left to her. The defendants, the deceased’s siblings, challenged the will on authenticity, testamentary capacity, and knowledge and approval grounds.

The defendants applied under rule 31.17 of the Civil Procedure Rules 1998 for disclosure by two non-party witnesses. The requested documents concerned communications, testamentary documents, a tenancy agreement, correspondence about testamentary wishes, and documents bearing the deceased’s signature. The central issues were whether the documents were relevant to the pleaded issues, whether disclosure was necessary, and whether the discretion to order non-party disclosure should be exercised.

1. The application was granted in part. The court applied the three-stage requirements under rule 31.17: the documents had to be relevant, disclosure had to be necessary for fair disposal or saving costs, and the court had to exercise its discretion.
2. “Likely to support” means “may well”, not more likely than not. The relevant “case” is the pleaded case. The court must focus narrowly on the issues defined by the pleadings and cannot order disclosure to investigate a different or unpleaded allegation. The defendants had not pleaded suspicious circumstances, undue influence, conspiracy or forgery.
3. Non-party disclosure is exceptional and must be approached cautiously. Nevertheless, probate proceedings have a quasi-inquisitorial character. The court therefore assessed necessity in that context, while treating relevance as a prior threshold requirement. The possibility that documents might overlap with the claimant’s disclosure did not make non-party disclosure unnecessary.
4. The issue whether the deceased signed the will was for the judge on all the evidence, not solely on expert handwriting evidence. Documents bearing on authenticity could therefore be relevant even if they might also assist an unpleaded forgery allegation.
5. The court ordered disclosure of communications between the respondents and the claimant or each other during 21 May to 21 July 2017, because they might well evidence testamentary intentions and capacity. Call logs were excluded because they would not evidence those matters. Testamentary documents, including the will, drafts and written instructions, were accepted as disclosable.
6. Drafts and written instructions concerning the tenancy agreement were ordered because they might bear on capacity and knowledge and approval, although the defendants’ suspicion-based justification was rejected. Correspondence about testamentary wishes before 1 September 2016 was refused because it failed relevance or necessity requirements and would have disproportionate utility. Documents bearing the deceased’s signature from 1 January 2017 were ordered for expert comparison, subject to redaction and limited use where appropriate.