Ang v Reliantco Investments Ltd & Anor

An order for third-party disclosure requires the applicant to satisfy the jurisdictional conditions in Civil Procedure Rules 1998, r 31.17(3): the documents must be likely to support or adversely affect a party’s case, and disclosure must be necessary for fair disposal or saving costs. “Likely” means that the documents may well have that effect; a better-than-even chance is unnecessary. Even where jurisdiction exists, disclosure remains discretionary and exceptional. The court should consider the precision and breadth of the request, relevance, alternative sources, proportionality, lateness, confidentiality, existence and control of the documents, and the burden on the third party. The application was refused in relation to most documents, but granted for specifically identified BT invoices because they might well reveal relevant IP addresses and were reasonably likely to exist within the respondent’s control.

The claimant sued Reliantco Investments Ltd concerning the termination of an investment and trading account and alleged losses arising from the closure of Bitcoin futures positions. Reliantco alleged that the account had been operated by the claimant’s husband, Dr Craig Wright, through a misrepresentation as to the account holder and user.

Reliantco applied under Civil Procedure Rules 1998, r 31.17 for third-party disclosure from Dr Wright. The application concerned documents relating to funds allegedly received from DeMorgan Ltd, the Wright Family Trust, a virtual private network at the claimant’s former home, and BT invoices concerning leased IP addresses. The central issues were whether the jurisdictional requirements were satisfied and, if so, whether disclosure should be ordered in the exercise of the court’s discretion.

1. The application was dismissed except in relation to BT Openworld invoices. Dr Wright was ordered to disclose invoices for the lease of relevant IP addresses, subject to terms to be agreed. He had liberty to apply, and costs were to be addressed under Civil Procedure Rules 1998, r 46.1(2).
2. Under Civil Procedure Rules 1998, r 31.17(3), the court’s jurisdiction arises only where the documents sought are likely to support the applicant’s case or adversely affect another party’s case, and disclosure is necessary for fair disposal of the claim or saving costs. “Likely” means that the documents may well have the relevant evidential effect; a probability exceeding 50 per cent is unnecessary. The documents must nevertheless be relevant and sufficiently identified (para [6]).
3. Once jurisdiction exists, the court retains a discretion. Third-party disclosure is exceptional rather than routine, and wider considerations must be weighed. Relevant considerations include the breadth and precision of the request, proportionality, the burden and position of the third party, alternative disclosure from a party, lateness, confidentiality, and whether the documents exist and are within the third party’s control.
4. The requests for documents concerning the DeMorgan loan and email searches were too broad and insufficiently specific. The applicant therefore failed to establish the jurisdictional requirements. In any event, disclosure would have been refused as disproportionate, insufficiently relevant and unsupported by evidence that the documents were held by Dr Wright.
5. The jurisdictional requirements were satisfied for the Wright Family Trust deed because of the inconsistency in the claimant’s pleaded case. The court nevertheless refused disclosure because the application was late, disclosure could have been sought from the claimant, and it was unlikely materially to advance the parties’ positions.
6. Some VPN documentation was sufficiently relevant, but the evidence was that the refined documents did not exist and therefore could not be within Dr Wright’s control. Disclosure was refused. BT invoices were different: they might well disclose the leased IP addresses, there was a reasonable possibility that they existed and were accessible to Dr Wright, and the request was sufficiently confined. The order could be varied if compliance proved unexpectedly disproportionate, excessively time-consuming or unduly delayed.