Aron Liebenthal v Shulam Liebenthal & Ors

Third-party disclosure is exceptional. An order under Civil Procedure Rules 1998, r 31.17 requires documents to be likely to support the applicant’s case or adversely affect another party’s case, and disclosure must be necessary for the fair disposal of the claim or to save costs. Documents supplying only background, material for cross-examination, or a possible train of enquiry do not satisfy those requirements. A disclosure order should also identify documents with sufficient precision and should not require a non-party to sift an entire file to decide what falls within the order. Even where the statutory conditions are met, the court retains a discretion and will ordinarily order non-party disclosure only in an exceptional case.

The claimant seeks to propound the deceased’s 2005 will. The first and third defendants seek to propound a 2017 declaration said to revive a 1990 will, and challenge the validity of the 2005 will. They applied under para 1.8 of Practice Direction 57AD and Civil Procedure Rules 1998, r 31.17 for disclosure by the Beth Din of its complete files concerning the deceased and the parties. The files concerned an arbitration dispute between the deceased and the claimant before the 1990 will. The central issue was whether the requested material met the statutory conditions for third-party disclosure and, if so, whether disclosure should be ordered.

1. Application refused. The defendants failed to establish either condition in Civil Procedure Rules 1998, r 31.17(3).
2. The threshold condition in r 31.17(3)(a) requires the documents sought to be likely to support the applicant’s case or adversely affect another party’s case. Documents that merely provide background or generate a train of enquiry fall outside the rule. A class of documents cannot be ordered where it includes material that does not satisfy the threshold, and the order cannot require the non-party to identify the documents that do.
3. The requested Beth Din files related principally to a dispute before the 1990 will. The initial validity of that will was not disputed. The court considered it highly unlikely that historic material would explain why the deceased later made the more favourable 2005 will. The pleadings did not allege that the reasons for disinheritance in 1990 remained operative in 2017. The files therefore were not likely to support the defendants’ case about the deceased’s testamentary intentions in 2017 or adversely affect the claimant’s case concerning the 2005 will.
4. The necessity condition in r 31.17(3)(b) was also unsatisfied. The proposed order for complete files, limited only by reference to pleaded matters, would require the Beth Din to sift its files and determine which documents fell within the order. The application had the hallmarks of a fishing expedition aimed at obtaining material for cross-examination rather than documents focused on the pleaded issues. Disclosure was not necessary for fair disposal of the claim or to save costs.
5. Even if both conditions had been met, the court would have exercised its discretion against the order. Non-party disclosure is the exception rather than the rule, and this was not an exceptional case warranting disclosure.