Bugsby Property LLC v LGIM Commercial Lending Ltd & Anor

Non-party disclosure is exceptional. An applicant must show that the documents sought may well support its case or adversely affect another party’s case, that disclosure is necessary for fair disposal or to save costs, and that the order is sufficiently clear and specific. The court retains an overriding discretion even where those conditions are met.

In exercising that discretion, the court must balance the needs of the litigation against the non-party’s interests, including confidentiality, privacy, commercial sensitivity and the burden of searching. Confidentiality concerns do not necessarily defeat necessary disclosure. They may justify redactions, limits on use, or a tiered confidentiality ring. Disclosure should be confined to categories that are necessary and proportionate.

Bugsby Property LLC and Legal & General applied under section 34 of the Senior Courts Act 1981 and CPR rule 31.17 for non-party disclosure from members of the successful consortium that acquired Olympia and from Capital & Counties Properties plc, the seller. The underlying claim alleged that Legal & General breached confidentiality and exclusivity obligations by financing a rival bidder.

The applications sought documents concerning alternative finance, the consortium’s redevelopment and valuation of Olympia, Capco’s assessment of competing bids, and communications concerning the sale and possible refinancing. The respondents resisted some requests on grounds of relevance, necessity, clarity, proportionality, burden and commercial confidentiality. The issues were whether the requested classes met CPR 31.17 and, if so, whether disclosure should be ordered and subject to what protections.

1. Applications partly successful. The court ordered disclosure of specified categories from the Yoo Respondents and Capco, refused or limited other categories, and directed that disclosed documents be subject to appropriate confidentiality arrangements.
2. Under section 34 of the Senior Courts Act 1981 and CPR 31.17, the applicant must establish that the documents sought may well support its case or adversely affect another party’s case; that disclosure is necessary to dispose fairly of the claim or save costs; and that the documents and classes are sufficiently clear and specific. For a class of documents, each document within the class must satisfy the threshold, although contextual documents may qualify where they assist in understanding more obviously relevant documents (paras 15–19).
3. The necessity requirement has an independent role. It is not enough that documents are relevant if the parties already possess sufficiently complete material or equivalent information from other sources. The court rejected the submission that specific expert evidence of necessity was required (paras 20–21).
4. The court retained a discretion after the threshold conditions were met. Non-party disclosure is intrusive and remains the exception rather than the rule. The court must consider the burden on the non-party, proportionality, alternative sources, and competing interests such as privacy and confidentiality (paras 23–26).
5. Applying those principles, fuller documents concerning alternative lenders, investment committees, redevelopment plans, Capco’s board assessments, the managing director’s relevant emails and specified sale communications were necessary to determine causation, loss, the availability and timing of finance, and the relative attractiveness of the bids. Broader requests, including most refinancing documents, material concerning an additional Capco officer, and an unrestricted server search, were disproportionate or unnecessary (paras 27–76).
6. Confidentiality was addressed through the general protection in CPR 31.22(1) and a tiered confidentiality ring. The sensitivity of business plans and valuations, and the risk of competitive advantage, justified initially excluding Bugsby’s commercial representative from some documents, while preserving a mechanism for case-by-case access and later review (paras 77–88).
7. The parties were directed to agree the form of order and confidentiality arrangements. The usual costs position under CPR 46.1 was reserved for further submissions (paras 89–90).