Jennifer Marie Bridgett Webster v HMRC

An unappealed disclosure order must be complied with according to its terms. Where relevance has already been determined, a party cannot redact identifiers by making its own assessment that those identifiers are irrelevant. Redaction requires a discrete and established legal basis, such as legal professional privilege. The court should not use an inspection application, shortly before trial, to reopen the merits of the pleaded case or revisit the correctness of the original disclosure order. A public-authority abuse of process case may involve wider public-policy and administration-of-justice considerations and is not necessarily confined to a funder’s malicious or improper motive.

The claimant brought proceedings against HMRC. Following an order by Deputy Master Fine, the claimant disclosed documents concerning interactions with third parties about FATCA, including third-party funders. She redacted the identity of the principal funder.

HMRC applied for inspection of the documents in unredacted form. The claimant argued that the funder’s identity was irrelevant and that the disclosure order permitted the redaction. The claimant had unsuccessfully sought permission to appeal the original order and had not applied for its variation. The issue was whether the order required disclosure of the documents and identifiers in full.

1. The inspection application was granted. The Deputy Master’s order was unambiguous. It required disclosure of documents relating to interactions with third parties funding the claim concerning FATCA, identified by subject matter, senders and recipients.
2. Relevance had already been decided against the claimant. She could not unilaterally remove an aspect of the documents by asserting that the funder’s identity was irrelevant. If documents were properly relevant and disclosable, they had to be disclosed in full unless a discrete and established legal basis for redaction existed. No such basis was claimed.
3. The claimant had either to appeal the relevance decision or comply with the disclosure order. She did neither. The court had no application to vary the order and no application for relief from sanctions. With trial imminent, it was too late to debate whether a different disclosure order should have been made, and premature to determine the ultimate merits or sustainability of the abuse of process defence.
4. By way of observation, the pleaded defence appeared to rely on a form of abuse of process available to a public authority and potentially involving public policy, the administration of justice and the public interest in transparent litigation. It therefore was not necessarily confined to a malicious or vitiating motive in the funder. Broxton v McClelland was distinguished on the facts and did not determine the wider issue.
5. The claimant was directed to permit inspection by de-redacting the funder’s identity.

The application concerned compliance with an order made by Deputy Master Fine on 21 September 2022. Permission to appeal that order was refused on paper, and the claimant did not renew the application. The present court granted HMRC’s application for inspection.