DISCLOSURE OF DOCUMENTS MENTIONED IN WITNESS STATEMENTS: MENTION MUST MEAN “SPECIFICALLY MENTION”

The judgment in Rudd v Bridle & Anor [2019] EWHC 1986 (QB) also considered, and rejected, the claimant’s application for specific disclosure of documents.  Mr Justice Warby held that for an order to be made under CPR 31.15 there must be a specific reference to a document.  Further the claimant’s reasons for seeking disclosure were inappropriate and an order would not have been made in any event.

mention” must mean “specifically mention”,”

THE CASE

The defendant was partially successful in an action against the claimant and obtained an order for costs.  The claimant’s solicitor made a witness statement in relation to the discharge of a charging order over the claimant’s property. The defendant sought disclosure of documents which, it was said, must exist as they were referred to in the witness statement.

THE JUDGMENT

CPR 31.15
    1. CPR 31.14(1)(b) provides that a party may inspect a document “mentioned in … a witness statement.” If that party gives notice of his wish to inspect the document, the other party must permit inspection, within 7 days: see CPR 31.15. The duty to permit inspection may be enforced by the Court, where appropriate.
    2. The exercise of the power to order inspection under these rules, and the meaning of “mentioned” in this context, have been considered in a number of authorities, among them Rubin v Expandable Ltd [2008] EWCA Civ 59 [2008] 1 WLR 1099, relied on by both parties to this application. Rix LJ (with whom Jacob LJ and Forbes J agreed) distinguished the case in which a document is “mentioned” from one where the wording of a statement merely allowed an inference that a document existed. He held at [23-25] that that “mention” must mean “specifically mention”, and approved a test of “direct allusion”. He gave examples of forms of expression in which “the making of the document itself is the direct subject matter of the reference and amounts … to the document being ‘mentioned'”. He was referring here to statements such as “he wrote” or “I recorded and transcribed our telephone call”. Statements such as these were contrasted with assertions such as “he conveyed” or “he guaranteed”, which Rix LJ characterised as references to transactions, from which it might be inferred that a document had come into existence.
    3. A second strand of the reasoning in these passages is to “look upon the mention of a document in pleadings, etc as a form of disclosure”. The party deploying the document should in principle be prepared to be required to permit its inspection.
    4. In the course of the heated exchanges over costs post-judgment, the claimant sought and obtained an interim charging order over the Bridle matrimonial home. On 6 June 2019, Robin Andrew Francis, an associate at Dentons, made a witness statement in response to an application to make that order final, and in support of an application to discharge the interim order, and for other relief. Within that statement was a paragraph headed “The Claimant’s losses”. Paragraph 13 reads as follows:
“13. The Judgment Debtor has informed Dentons:
(a) Whilst some form of equity release may have been an option, he has decided to sell part of the charged property to pay the costs in the Judgement. The Judgment creditor is aware of this, given Dentons’ letter dated 21 May 2019 (page 4).
(b) To pay the Judgment Debt, Judgment Debtor took out a short-term loan to cover those costs whilst the sale completed.
(c) Once that sale is completed, part of the proceeds will be used to satisfy the loan. At that point, loan interest would cease to be incurred. The buyer’s solicitor has informed the Judgment Debtor that the sale cannot be completed due to the restrictions put on the property by Judgment Creditor in relation to the charging order.
(d) This has resulted in the Judgment Debtor incurring unnecessary interest due to the Judgment Creditor’s refusal to discharge the charging order.”
    1. The claimant seeks inspection of three documents he says are “mentioned” in that paragraph. Three documents are sought:
(1) “The short-term loan”. The claimant submits that paragraph 13(b) contains a direct allusion to a document containing a loan agreement to which Mr Bridle is a party. I disagree. A loan is a transaction, which may or may not be contained in or evidenced by a document. This is a reference to a transaction, akin to “he guaranteed”.

(2) “The contract of sale.” The claimant contends that paragraphs 13(a) and (c) mention such a document. The submission is that “it is inconceivable that a contract for the sale of part of the First Defendant’s home, negotiated by professional solicitors, would be anything other than a written agreement.” This is an odd application, in some ways. It has been the claimant’s own case on this application that there was no such transaction, and that I should infer that the £50,000 interim payment did not derive from such a sale, but instead from a third-party funder. But leaving that aside, this is another case where there is no direct allusion to a document. At best, the existence of such a document might be inferred. In fact, on a fair reading, the effect of paragraphs 13(a) and (c) is that not only has no such transaction been completed, there may not even be an agreement to sell. This undermines even the inference.

(3) “The communication when the Buyer’s solicitor informed the First Defendant or his Solicitors that the sale could not be completed”. It is submitted that paragraph 13(c) “makes direct allusion to correspondence from the putative buyer’s solicitor”. It does not. The existence of correspondence might be inferred, on the footing that solicitors usually communicate on such matters in writing rather than face-to-face or by telephone. But there is no direct allusion. Indeed, the case against treating these statements as direct allusions to documents is reinforced by the fact that they are all statements about what Dentons has been told by Mr Bridle. On the face of the statement it is clear that Mr Francis is giving hearsay evidence, which may indeed be second-hand hearsay.

  1. That is enough to dispose of this application. But I would also accept Mr Fairbairn’s further submission, that the Court should not in the circumstances order disclosure in any event. Mr Fairbairn relies on Rix LJ’s observations about the purpose of CPR 31.14, submitting that disclosure cannot now be justified for the purpose of enabling a party to see the basis of his opponent’s case on a contested issue. The witness statement was made in a specific context. Its purpose has been served. The charging order has been discharged, and there is no outstanding issue about it. Here, the claimant’s stated purpose is unrelated to the proceedings over the charging order. He seeks inspection of the supposed documents on the basis that they may assist in (i) ascertaining the true picture of Mr Bridle’s capacity to meet his costs liability; and (ii) identifying a potential non-party funder from the source of the “short term loan”. Further, in the light of my conclusions on the Funding Disclosure Application, the second of these purposes is not legitimate. The first is also mistaken as it presupposes a right to interrogate the judgment debtor about his assets and resources, in this context.