The recent Court of Appeal decision in Three RiversDistrict Council & Others v Governor & Company of the Bank of England  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...
Threshold Test for Non-Party Disclosure
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