FD21F00033 - [2025] EWHC 1891 (Fam)

CPR 31.17(3) provides that a non-party disclosure order may be made only where: (a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and (b) disclosure is necessary in order to dispose fairly of the claim or to save costs. 

It is clear from CPR 31.17(1) that there must be some statutory basis for an application for disclosure against a non-party. On behalf of Z Limited, Mr Cloherty asserts that the only applicable statutory basis here could be s. 34(2) of the Senior Courts Act 1981, which (so far as material) provides:   

“On the application, in accordance with rules of court, of a party to any proceedings to which this section applies, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings and who appears to the court to be likely to have in his possession, custody or power any documents which are relevant to an issue arising out of the said claim - 
(a) to disclose whether those documents are in his possession, custody or power; and

Thus section 34 provides that the Court can impose conditions on any order it makes, including by restricting production of any documents to the applicant’s lawyers or professional advisers. Such conditions would plainly be considered where confidentiality issues arise.

In Flood v Times Newspapers Ltd [2009] EWHC 411 (QB) at [9] it was said that

“…it is necessary for the court to have regard to the special nature of this jurisdiction and to ensure, so far as possible that it is exercised with appropriate constraint and that the relative criteria are properly addressed”:
and later:

“It is clear that disclosure against third parties should be regarded as the exception rather than the rule”.

In Re Howglen Ltd [2001] 1 All ER 376 the court echoed this (at 382h) stating that “… notwithstanding the provision as to costs, the jurisdiction to make an order against a non-party must be exercised with some caution.”  

I am grateful to Mr Cloherty for drawing my attention to these important decisions which clearly provide the framework within which this court should operate, unless good reason can be found to suggest to the contrary.

There are two threshold jurisdictional conditions in CPR 31.17(3):  
First, that disclosure would be likely to support the applicant’s case or adversely affect the case of one of the other parties. 

Condition 1: disclosure would adversely affect a party’s case

Condition 2: necessity for fair disposal or saving costs

At an earlier hearing before Mostyn J, he referred the parties to the Court of Appeal’s endorsement of Sir James Munby P’s discussion in Re H – L (Expert evidence: test for permission) [2014] 1 WLR 1160 (at [3])²⁴:  

“[necessary] has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”. 
Necessity will not be made out where the “applicant has already received disclosure of sufficient documents to enable it to advance its case… There must be a limit beyond which it is not reasonable to require third parties to assist litigants by giving disclosure”: Henry v News Group Newspapers Ltd (No 1) [2011] EWHC 296 (QB) at [14].   

Mr Cloherty further asserts that the wording of the rule shows that jurisdiction only exists if disclosure is necessary fairly to dispose of the claim at this stage.  

As to the second sub-condition – alleged necessity to save costs – Mr Cloherty submits that the court should also take account of the costs that a large non-party disclosure order exercise will itself generate, and the proportionality and necessity of such costs being incurred, not least with the usual non party disclosure order costs rules in mind. He reminds me of Morgan J’s observation in Fanmailuk.com at [58]:  

“… I do not see how it can be said that disclosure is necessary to save costs. If anything, disclosure will increase the costs for [the applicant]. That will certainly be so if I made the usual order that [the applicant] pay [the respondent’s] cost of providing disclosure. Even if, unusually, I ordered [the respondent] to bear its own expense of the disclosure, [the applicant] would still incur costs of its own in considering the documents obtained upon disclosure.”