Joshua Parker v Skyfire Insurance Company Limited

Non-party disclosure under CPR Part 31.17 requires more than showing that documents may assist a pleaded issue. The applicant must also show that disclosure is necessary for the fair disposal of the claim or to save costs.

A voidable contract remains valid unless avoided. Where a fully performed contract for services cannot be rescinded because restitution is impossible, evidence of misrepresentation cannot affect the claimant’s liability under the contract. Disclosure directed solely to that issue is therefore unnecessary.

The likelihood and necessity requirements are fact-sensitive. Delay is relevant to the court’s discretion, but it is not necessarily a free-standing reason to refuse relief.

Skyfire appealed from an order of the County Court at Liverpool refusing its application under CPR Part 31.17 for disclosure from Spectra Drive Limited, a non-party. The underlying road traffic claim included credit hire charges incurred under agreements between Mr Parker and Spectra.

Skyfire suspected that calls made after the accident contained misrepresentations about Spectra’s relationship with Mr Parker’s insurers or his liability for the hire charges. It sought the recordings to investigate whether the agreement was voidable and whether Mr Parker had suffered recoverable loss.

The Recorder accepted that the recordings were relevant and likely to assist Skyfire, but held that disclosure would serve no useful purpose because the contract remained enforceable unless avoided and there was no realistic prospect of avoidance. The central issue on appeal was whether that conclusion was legally wrong or perverse.

1. Appeal dismissed. The Recorder’s conclusion that the requested recordings would serve no useful purpose was upheld, although the correct analysis was that the necessity threshold in CPR Part 31.17(3)(b) was not satisfied.
2. Under CPR Part 31.17(3)(a), documents are “likely” to support or adversely affect a party’s case where they “may well” do so. This requires more than a fanciful prospect, but less than proof on the balance of probabilities. The assessment is fact-specific and the application was not a mere fishing expedition.
3. Likelihood of assistance is distinct from necessity. Even where documents may well assist a misrepresentation case, disclosure is not necessary if there is no realistic prospect that the evidence could alter the result.
4. A misrepresentation makes a contract voidable, not automatically unenforceable. The contract remains valid unless avoided. Avoidance requires rescission, subject to the requirements of restitution, and a contract may be affirmed by conduct or lapse of time.
5. Mr Parker had relied on the Spectra agreements in claiming the hire charges and had maintained that avoidance was unrealistic. More fundamentally, the hire agreement concerned fully performed services which could not realistically be restored. A fully performed contract for services could not be rescinded in the circumstances. Consequently, even proof of misrepresentation could not relieve Mr Parker of his contractual liability, so the recordings could not affect Skyfire’s liability for the claimed loss.
6. The application had also been delayed and would have disrupted the trial. However, delay was a case-management matter within the Recorder’s discretion and would not alone have justified refusal if the application had otherwise been well-founded. Proportionality likewise was not an independent reason for refusal.
7. The court’s postscript was obiter. In road traffic proceedings, any issue of avoidance arising from misrepresentation ordinarily concerned the claimant and the credit hire company, unless fraud or collusion was alleged.

• High Court (King’s Bench Division): appeal from the County Court order dated 25 September 2023 dismissed.
• County Court at Liverpool: application by Skyfire for non-party disclosure under CPR Part 31.17 refused.