Threshold Test for Non-Party Disclosure

Profession:Herbert Smith
 
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The recent Court of Appeal decision in Three Rivers

District Council & Others v Governor & Company of the Bank of

England [2002] EWCA Civ 1182 has considered the threshold test for a

party obtaining disclosure from a

non-party. The decision is likely to

result in more successful applications for non-party disclosure.

Background

Some eleven years

on, the fallout from the collapse of the Bank of Credit and Commerce SA

(BCCI) is still being dealt with by the courts and the Three Rivers

case is yet another instalment. The claimants, including Three Rivers

District Council, are former depositors in BCCI. Following the public

inquiry into the collapse of BCCI by Lord Justice Bingham (which led to

the publication of the Bingham Report), the claimants issued proceedings

against the Bank of England (the “Bank”), the primary claim being that of

misfeasance in public office by officials of the Bank in their handling of

the BCCI crisis. The action is still proceeding before the courts, and the

issue before the Court of Appeal on this occasion was that of disclosure.

Following the close of pleadings, the claimants made two applications

for disclosure, one against the Bank and one against HM Treasury, the

latter not being a party to the proceedings. The documents sought from the

Bank, which included the documents sought from the Treasury, were the

evidence and other material obtained and produced by and on behalf of Lord

Bingham during the course of the inquiry. The applications were first

heard by Tomlinson J who held that the documents sought were not in the

control of the Bank under CPR 31.8 and the Bank was under no obligation to

disclose them. However, he also held that the claimants had satisfied the

threshold condition in CPR 31.17(3)(a) in relation to the documents sought

from the Treasury. Tomlinson J did not make an order for disclosure

against the Treasury as he had not yet considered, nor been asked to

consider, whether the threshold condition in CPR 31.17(3)(b) had been met

or whether the court's discretion should be exercised.

Relevant rule

CPR 31.17(3) provides as follows:

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.

Appeal

The claimants appealed the...

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