CLAIMANT SUCCESSFUL ON APPEAL IN APPLICATION FOR NON-PARTY DISCLOSURE: THEY “SHOULD NOT HAVE HAD TO MAKE THE DISCLOSURE APPLICATION IN THE FIRST PLACE”

In Sparkes v London Pension Funds Authority & Anor [2021] EWHC 1265 (QB) Mr Justice Murray allowed an appeal and made an order for non-party disclosure in favour of a claimant.  There are few appellate decisions in relation to non-party disclosure and this contains a useful review of the principles.  It is provides a lesson for those advising respondents to these applications. The respondent did not attend the original application, or the appeal, however it was ordered to pay the costs on the grounds that the documents should have been provided voluntarily.

 

“Had the Trust engaged properly with the request, the appellant would not have had to make the Disclosure Application. I bear in mind that the respondent did not attend the hearing before Master Thornett and so did not actively oppose the Disclosure Application. But the appellant should not have had to make the Disclosure Application in the first place.”

THE CASE

The claimant brings an action for damages following the death of his wife due to mestothelioma.  It is his case that his wife was exposed to cancer as a result of working at a school.  That school is now an academy.  The school’s liabilities were taken on by the defendant.  The action is due to proceed to trial in November 2021.

The claimant applied for non-party disclosure from the school in relation to a collection of documents relating to building and maintenance work carried out at the school. That application was refused by the Master.

THE JUDGMENT

The judge allowed the claimant’s appeal.
    1. The basic provisions for non-party disclosure are set out at CPR r 31.17. The power to make such an order derives from section 34 of the Senior Courts Act 1981. Any such application must be supported by evidence: CPR r 31.17(2).
    1. CPR r 31.17(3) provides:
“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.”
    1. The principles applicable to third party disclosure are discussed in detail by Eady J in Flood v Times Newspapers Ltd [2009] EWHC 411 (QB) at [22]-[36]. The principles relevant for this appeal include the following:
i) the jurisdiction is potentially intrusive and therefore the court must ensure that it is not used inappropriately, even where the application is not opposed: Flood at [29];
ii) the court retains a discretion even where the relevant criteria are met: Frankson v Home Office [2003] EWCA Civ 655, [2003] 1 WLR 1952 at [13];
iii) ordering disclosure against a non-party is the exception rather than the rule: Frankson at [10]; and the jurisdiction should be exercised with caution: Re Howglen Ltd [2001] 1 All ER 376 (ChD) at 382h;
iv) where a party seeks a class of documents, the relevant test must be satisfied for each document in the relevant class; the burden cannot be put on the respondent to identify those documents within the class that do, and those that do not, meet the necessary condition of relevance: Three Rivers District Council v Governor and Company of the Bank of England (No 4) [2002] EWCA Civ 1182[2003] 1 WLR 210 (Chadwick LJ) at [36];
v) for the purposes of CPR r 31.17(3), 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 do so, this being a higher test than the “real prospect” test applied, for example, under CPR r 24.2 or CPR r 52.6: Three Rivers DC (No 4) at [32]-[33].
Grounds of appeal
    1. The grounds of appeal are:
i) Ground 1: the judge failed to apply the appropriate test under CPR r 31.17;
ii) Ground 2: the judge failed to consider the potential importance of the objective documentary evidence;
iii) Ground 3: the judge considered irrelevant matters and failed to consider relevant matters; and
iv) Ground 4: the judge erred in the exercise of his discretion.
Submissions
    1. In relation to Ground 1, Mr Harry Steinberg QC, leading counsel for the appellant, submitted that the Master misunderstood what was sought by the Disclosure Application. The Master described the class of documents sought as “extraordinarily broad” or “hopelessly wide”. However, the appellant was simply seeking documents held in boxes at the School relating to building work and maintenance work at the School that might show the presence, use or removal of asbestos materials. This was repeatedly explained to the Trust in correspondence, for example, in RWK’s letter to the Trust dated 28 October 2019. The Trust wrongly considered that only documents from Mrs Sparkes’s period of employment (1970-1975) could be relevant.
    1. It should have been immediately apparent to the Master that this was a misunderstanding. Documents from an earlier period, when asbestos material may have been installed, or from a later period, for example, an asbestos survey showing its removal, may well have supported the Appellant’s case.
    1. The Master did not analyse or even consider the nature of the documents that were being sought or their potential relevance. This was a failure to apply the appropriate test and therefore wrong in principle.
    1. In relation to Ground 2, Mr Steinberg noted that Mrs Sparkes was not able to provide a statement as a result of her illness and death. The case therefore rested on the evidence of others. In that context, relevant contemporaneous or quasi-contemporaneous documents, if available, were particularly important. It was the appellant’s case that Mrs Sparkes was exposed to asbestos during the course of her employment at the School. The best evidence in support of that case was likely to be documents generated during the course of the building works.
    1. Mr Steinberg submitted that it was highly likely that these documents would include asbestos surveys after the implementation of the Control of Asbestos at Work Regulations 1987. These documents would either confirm that Mrs Sparkes would have been exposed to asbestos during the course of her work or, conversely, that the School had no significant asbestos legacy and/or took proper precautions. Either way, the documents would clearly be relevant and necessary for the just disposal of the case.
    1. With a trial date in November 2020 and repeated requests having been ignored by the Trust, the appellant was compelled to make the Disclosure Application. He had no other way of obtaining the documents. The Order, if allowed to stand, would deprive the parties, and ultimately the court, of documents that would probably amount to the best evidence in the case.
    1. In relation to Ground 3, Mr Steinberg submitted that the Master had placed too much weight on matters having little bearing on the criteria under CPR r 31.17(3).
    1. Mr Steinberg gave the following examples, drawn from the Judgment:
i) The Master placed inappropriate weight on there having been a significant lapse of time before making the Disclosure Application. Having regard to the appellant’s statement in support of the Disclosure Application, it was difficult to see why the Master did so. The appellant had naturally attempted to resolve the matter without making an application.
ii) The Master was wrong to find that there was nothing in the Disclosure Application to suggest that there were further relevant documents. The potential relevance of the documents sought was explained in the statement supporting the Disclosure Application.
iii) The Master was wrong to say that the appellant had not taken any steps to arrange a physical inspection. RWK had repeatedly offered to pay the copying charges or inspect the documents on site. It was difficult to see what more RWK could have done on the appellant’s behalf to facilitate this.
iv) The Master was wrong to find that there was no evidence as to the “practicality” of disclosure by the Trust, and his conclusion that he could not make the order sought by the Disclosure Application “intelligible” was difficult to understand. Given that the relevant documents were retained at the School in a number of boxes, it was difficult to see what was impractical or unintelligible about the appellant’s proposed order.
    1. In addition to these matters, Mr Steinberg submitted that the Master failed to consider highly relevant factors such as the potential importance of the documents sought and the procedural fact that the trial was listed to start in November 2020.
    1. In relation to Ground 4, Mr Steinberg said that he relied on his arguments in relation to the first three grounds. He submitted that where there was a limited quantity of potentially highly relevant documents sitting in boxes at the School, the decision to dismiss the Disclosure Application was unreasonable.
    1. In its letter of 27 November 2020 Stone King made no specific submissions on the grounds of appeal. It relied on the Master’s conclusion that the Trust had by July 2019 done all that it could reasonably have been expected to do in response to the appellant’s requests for disclosure.
Discussion and analysis
    1. Acknowledging the broad discretion that the Master should be accorded in making a case management decision, I am nonetheless forced to the conclusion that he was wrong in his application of the test under CPR r 31.17(3) to the relevant facts, took into account irrelevant factors, gave insufficient weight to relevant factors, and failed to balance the relevant factors fairly in the scale. His decision was wrong, and therefore the Order had to be set aside.
    1. In my view, the appeal succeeds on all four grounds, essentially for the reasons put forward by Mr Steinberg.
    1. In RWK’s initial correspondence with the Trust, it did appear that the request for disclosure made to the Trust was limited to the period of Mrs Sparkes’s employment in the 1970s. The Trust was responsive to this, providing the roughly 46 pages of documents, copies of which were sent to RWK on 2 July 2019. Given what it had been told by the Premises Manager about there being boxes of materials held at the School, RWK was understandably sceptical that all relevant material had been located, leading to further correspondence and the telephone conversation between Ms Seavor of RWK and Mr Taylor of the Trust on 14 October 2019.
    1. At that point, Ms Seavor seemed to accept Mr Taylor’s assurance that RWK had received all relevant papers from the “period of relevance”. She indicated, however, to Mr Taylor that she would be discussing the matter with counsel and would revert if further documents were required. Up to that point, the Trust’s response to the appellant’s request for disclosure cannot be criticised.
    1. In its letter of 28 October 2019, after consulting counsel, RWK made clear to the Trust that the appellant also needed disclosure of all documents regarding building, maintenance, renovation, or demolition works at the School before and after Mrs Sparkes’s employment, which might be relevant to the question of Mrs Sparkes’s possible exposure to asbestos. RWK again offered to visit the School to inspect the documents or to pay copying costs. In effect, from this point onwards, the Trust failed to engage with the appellant’s broader, but still reasonable, disclosure request.
    1. The Master noted in the Judgment the Trust’s engagement with the disclosure request until 14 October 2019, including the provision of documents in July 2019, and concluded that it had acted reasonably and nothing more could reasonably have been expected of it in the absence of a more focused disclosure request. With respect to the Master, however, it is clear from RWK’s letter of 28 October 2019 that the scope of what was requested was widened, but not unreasonably so.
    1. For the reasons given by Mr Steinberg, documents regarding building, maintenance, renovation, or demolition works at the School, both before and after Mrs Sparkes’s period of employment, were potentially relevant, satisfying the “may well” test referred to in Three Rivers (No 4). Properly understood, the Disclosure Application did not seek to require the Trust to undertake a disproportionate, onerous, vague, or unfocused search. All the potentially relevant documents were in boxes at the School’s premises, and RWK was offering to pay copying costs or to attend and physically inspect the boxes themselves.
    1. Moreover, it is clear that there was a reasonable possibility that in those boxes there would be documents that were decisive of the claim, one way or the other, and therefore that disclosure was necessary in order to dispose fairly of the claim and/or to save costs.
    1. Because the Master appears to have misunderstood the scope of what was requested in the Disclosure Application, which in my view is clear from the statement supporting the Disclosure Application, he did not exercise his discretion on a proper basis and therefore made the wrong decision.
Conclusion
  1. For those reasons, I allowed the appeal.

COSTS

It is worth noting that the judge ordered that the respondent to pay the costs.

    1. As to costs, the normal rule under CPR 46.1 in relation to an application for disclosure from a third party is that the court will award the third party costs of the application and of complying with any order made on the application. The court may, however, make a different order, having regard to all the circumstances.
    1. In this case, I consider that it is appropriate to make a different order in relation to costs. The Trust has not put forward any good reason why, from the end of October 2019 onwards it failed to engage with the appellant’s reasonable and several times repeated request for disclosure, which included reimbursing the Trust for its copying costs or attending to conduct a physical inspection, further minimising cost to the Trust.
    1. Had the Trust engaged properly with the request, the appellant would not have had to make the Disclosure Application. I bear in mind that the respondent did not attend the hearing before Master Thornett and so did not actively oppose the Disclosure Application. But the appellant should not have had to make the Disclosure Application in the first place.
    1. Given the potential importance of the documents regarding which disclosure was sought to the appellant’s claim against the LPFA, the appellant was justified in making the Disclosure Application. The appellant has been put to further cost by having had to appeal the Order.
    1. I reviewed the appellant’s statement of costs and summarily assessed it. The amounts sought all seemed reasonable to me, having regard to the importance of the disclosure sought, the importance of the claim (the matter involving the death of Mrs Sparkes), and the work necessary to prepare the Disclosure Application, attend the hearing before Master Thornett, prepare the appeal and attend the appeal hearing before me.
  1. I considered the comments on the appellant’s statement of costs that were made by Stone King’s in its letter of 24 November 2020 to the court. Nonetheless, I considered that the amount sought was reasonable, given the work that was required. Accordingly, my order of 1 December 2020, in addition to allowing the appeal, setting aside the Order, and giving new directions under CPR r 31.17 to the Trust to disclose relevant documents at the School within 14 days of my order, included an order that the Trust pay the appellant’s costs, summarily assessed.