Threshold Test for Non-Party Disclosure
The recent Court of Appeal decision in Three Rivers
District 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.
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 ìBankî), 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.
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.
The claimants appealed the judge's...
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