Sparkes v London Pension Funds Authority & Anor

On an appeal from a case-management decision concerning non-party disclosure, the court must apply the statutory and procedural criteria to the documents actually sought. Under CPR r 31.17, documents need only be capable of materially supporting or adversely affecting a party’s case, and disclosure must be necessary for fair disposal of the claim or to save costs. The court retains a cautious discretion because non-party disclosure is potentially intrusive. A request for a class of documents must nevertheless be assessed document by document. A decision may be overturned where the first-instance judge misunderstands the scope of the request, gives insufficient weight to potentially decisive evidence, considers irrelevant matters, or fails to balance the relevant factors fairly.

The appellant, acting as personal representative of Pauline Sparkes, brought a fatal asbestos-related injury claim against the London Pension Funds Authority. He sought disclosure from Leigh Academies Trust, the body responsible for the school where the deceased had worked, of historical documents concerning building, maintenance, renovation and demolition works which might establish asbestos exposure.

Master Thornett dismissed the application on the basis that it was too broad, vague and disproportionate for a third party. The appellant appealed, alleging errors in applying CPR r 31.17, failures to consider relevant matters, consideration of irrelevant matters, and an error in the exercise of discretion.

1. Appeal allowed. The order dismissing the disclosure application was set aside. New directions were given under CPR r 31.17 requiring the Trust to disclose relevant documents held at the school within 14 days.
2. The appellate court should interfere with a case-management decision where the first-instance judge erred in principle, omitted relevant considerations, considered irrelevant matters, or reached a decision which was wholly wrong because the relevant factors were not fairly balanced. This was the conventional approach identified in Roache v News Group Newspapers Ltd [1998] EMLR 161 and described in AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507 (CA).
3. Under CPR r 31.17(3), the relevant documents need only be documents which may well support the applicant’s case or adversely affect another party’s case. Disclosure must also be necessary to dispose fairly of the claim or save costs. The court retains a discretion, and the jurisdiction must be exercised cautiously because disclosure against a non-party is exceptional and potentially intrusive. The principles identified in Flood v Times Newspapers Ltd [2009] EWHC 411 (QB), Frankson v Home Office [2003] EWCA Civ 655 and Re Howglen Ltd [2001] 1 All ER 376 (ChD) were relevant.
4. Where a class of documents is sought, the test must be satisfied for each document in the class. The burden cannot be transferred to the respondent to identify which documents satisfy the relevance requirement. The “may well” test is higher than the “real prospect” test under CPR r 24.2 or CPR r 52.6. This followed the guidance in Three Rivers District Council v Governor and Company of the Bank of England (No 4) [2002] EWCA Civ 1182.
5. The Master had misunderstood the scope of the request. Documents from before and after the deceased’s employment could reasonably bear on whether asbestos had been installed, disturbed or removed. The request was not disproportionate or unworkable, particularly because the documents were said to be held in boxes at the school and the appellant offered to inspect them or pay copying costs. There was a reasonable possibility that the documents could be decisive of the claim.
6. The Trust was ordered to pay the appellant’s costs. Although the usual rule under CPR 46.1 concerns the third party’s costs, the Trust had failed to engage with a reasonable and repeated request, making the application and appeal necessary.

• High Court (Queen's Bench Division): appeal from the order of Master Thornett dated 12 June 2020 allowed; the order was set aside and disclosure directions were made.