CAMBERLEY GROUP & Ors v PAUL FOSTER & Ors

An application for disclosure against a non-party is exceptional. The applicant must establish that the statutory conditions for non-party disclosure are met and that the application has been properly served. Where there is reason to doubt the respondent’s address, reasonable steps must be taken to verify the current address.

The applicant must also identify the correct legal personality and show that it is likely to possess relevant documents. A company and its director cannot be treated as interchangeable. Applications pursued without adequate explanation, or with unreasonable procedural conduct, may attract indemnity costs.

The claimant companies pursued disclosure applications against two non-parties under CPR 31.17. They also sought specific disclosure from the defendants under CPR 31.12.

The application against Peter Foster was served at an address in England and by email, although the claimants had information that he lived predominantly in France. The application against CJ Carter Limited was made despite evidence that relevant business had been conducted by Mr Carter as a sole trader, rather than by the company.

The specific-disclosure issues were resolved by agreement, leaving costs for determination. The court therefore considered service, the identity of the proper non-party respondent, and the appropriate costs consequences of the parties’ conduct.

1. Non-party disclosure. CPR 31.17(3) requires the documents sought to be likely to support the applicant’s case or adversely affect another party’s case, and disclosure to be necessary for fair disposal of the claim or to save costs. The jurisdiction is exceptional and intrusive, and must be controlled by the court even where the parties consent. Frankson v Secretary of State for the Home Department [2003] EWCA Civ 655 and Gary Flood v Times Newspapers [2009] EWHC 411 were noted in that context.
2. Peter Foster. The claimants bore the burden of establishing good service. Information that Mr Foster lived predominantly in France required reasonable steps to ascertain his current or usual address. Sending the application to an English address and by email did not establish proper service. The application was dismissed without consideration of its substantive merits.
3. CJ Carter Limited. The applicant also had to establish that the application was made against the correct legal personality and that the respondent was likely to possess relevant documents. A company and its director or sole trader could not be treated as a single entity. The claimants failed to show that CJ Carter Limited, rather than Mr Carter personally, was the relevant respondent. The application therefore failed, without determining the underlying factual allegations.
4. Costs. The claimants were ordered to pay the First Defendant’s costs on the indemnity basis. They were the unsuccessful party and had pursued a wide-ranging and inadequately explained application, including new requests and a Penal Notice introduced shortly before the hearing. The Second and Third Defendants were ordered to pay the claimants’ costs attributable to them because of their flagrant breach of the disclosure order and absence of good reason for delay.