KB-2025-001228 - [2025] EWHC 2506 (KB)

CPR 31.17(3) provides that where an application is made to the court for disclosure by a person who is not a party to the proceedings, the court may make an order under this rule 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”.

Under CPR 31.17(4), an order under this rule must (a) specify the documents or the classes of documents which the respondent must disclose; and (b) require the respondent, when making disclosure, to specify any of those documents – (i) which are no longer in his control; or (ii) in respect of which he claims a right or duty to withhold inspection.

As to the first limb of the CPR 31.17(3) test (relevance), documents “are likely to support the case” if they “may well” do so as opposed to it being “more probable than not” that they will: Three Rivers DC v Bank of England (No. 4) [2002] EWCA Civ 1182, [2003] 1 WLR 210 at [30]-[32]. The applicant must show that the relevance test is met for each of the documents to be disclosed: the court should not leave it to the non-party to determine which documents to disclose in this manner: White Book at paragraph 31.17.3.

As to the second limb (necessity), the court has a wide discretion and flexibility to make an order, considering all the circumstances of the case: R (Omar) v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118 at [30].

Even where the criteria of relevance and necessity in CPR 31.17(3) are satisfied, the court still has a discretion to decide whether it ought to order disclosure. The word “only” in 31.17(3) “emphasises that disclosure from third parties is the exception rather than the rule”; and “[d]isclosure will not be routinely ordered but only where the conditions there specified are met”:Frankson v Secretary of State for the Home Department [2003] EWCA Civ 655; [2003] 1 WLR 1952 at [10].

Privacy concerns can be a very relevant consideration for the court when conducting the balancing exercise and determining whether to exercise its discretion under CPR 31.17, particularly against a non-party: Phones 4U at [37].

In respect of how this power is to be exercised, the court has a clear obligation to ensure, if necessary of its own motion, that this “intrusive jurisdiction” is not “used inappropriately even by consent”: Flood v Times Newspapers Ltd [2009] EWHC 411 (QB) at [29], per Eady J.

The respondent’s costs of a third party disclosure application are normally paid by the applicant: CPR 46.1(2). The court may make a different order, for example if a respondent unreasonably opposed the application or unreasonably refused to comply with a pre-action protocol: CPR r.46.1(3).

In light of the legal framework set out above, I have distilled three issues inherent in the application.