Dare International Limited v Omar Kayaam & Ors

Third-party disclosure under Civil Procedure Rules 1998, rule 31.17 is exceptional and subject to strict criteria. The applicant need not prove on the balance of probabilities that the requested documents exist. It is sufficient to establish the relevance and necessity requirements in rule 31.17. Documents are relevant where they may well support the applicant’s case or adversely affect another party’s case. A class may be ordered where all documents within it meet that threshold, even though some may ultimately prove unhelpful. The order must nevertheless be confined to a class satisfying the relevance test. Disclosure may be necessary where the trial is imminent and the documents cannot realistically be obtained elsewhere. On the facts, three classes of communications were ordered, but a wider class of internal communications was refused.

Dare, a proprietary trading business, sought third-party disclosure from three individuals and seven companies within the Onyx Group in expedited proceedings against its former employee, Ali Ersen. Dare alleged that communications would assist its case concerning Mr Ersen’s sickness absence, constructive dismissal allegation, bonus claim, intended breach of post-termination restraints, recruitment of other Dare employees and non-disclosure of wrongdoing.

The application followed disclosure by Mr Ersen and evidence that he and one respondent had deleted WhatsApp messages. Dare also relied on findings in separate proceedings concerning two other former Dare employees and Onyx. The central issues were whether the application was premature, whether the document classes were too wide, whether Dare had to prove that the documents existed, and whether the relevance, necessity and discretionary requirements of rule 31.17 were satisfied.

1. Prematurity. The application was not premature. The imminent expedited trial justified determination before any specific disclosure application against Mr Ersen had concluded.
2. Existence of documents. Rule 31.17 contains no separate requirement that the applicant prove, on the balance of probabilities, that the requested documents exist. Any dispute about existence falls within the relevance test, since a non-existent document cannot be likely to support a case or adversely affect another party’s case.
3. Relevance. Applying the principles in Three Rivers District Council v Bank of England (No.4), the threshold is higher than a merely fanciful possibility but does not require proof on the balance of probabilities. The court must be satisfied that every document in an ordered class is likely to meet the threshold, although some documents may ultimately prove unhelpful. Classes 1(a), 1(b) and 2(a) satisfied that test. The wider class 2(b), covering communications between anyone within Onyx or its agents, did not, because much of its material could be second-hand or too remote.
4. Necessity and discretion. Disclosure in classes 1(a), 1(b) and 2(a) was necessary to dispose fairly of the claim. The documents were potentially important, could not realistically be obtained from Mr Ersen, and the impending trial made delay impractical. Confidentiality and privilege were adequately protected by rule 31.17. The order was not oppressive, although compliance costs were reserved because the circumstances were exceptional.
5. The order was made in respect of classes 1(a), 1(b) and 2(a), with paragraph 2(b) excluded. Further submissions were invited on whether previously disclosed documents should be excluded, timing and practical issues. Permission to appeal was refused.