Non-party disclosure

Flood v Times Newspapers Ltd; Berezovsky v Commissioner of Police of the Metropolis and another [2009] EWHC 411 (QB) 5 March

Disclosure by third parties should be regarded as the exception rather than the rule and not simply ordered by way of routine. The first requirement is that any document sought must be shown to be likely to support or adversely affect the case of one or other party. Thus, the question to be asked in each case is whether they are likely to help one side or the other. The word ‘likely’ in this context has been considered in the Court of Appeal and taken to mean that the document or documents ‘may well’ assist. And second, the hurdle must be overcome of demonstrating that disclosure of the documents sought is ‘necessary’ in order to dispose fairly of the claim or to save costs. This only arises for consideration if the first hurdle has been surmounted: unless the documents are relevant in that sense, it is not necessary to address the test of necessity. Third, there is a residual discretion on the part of the court whether or not to make such an order – even if the first two hurdles have been overcome. It is at this third stage that broader considerations come into play, such as where the public interest lies and whether or not disclosure would infringe third-party rights in relation, for example, to privacy or confidentiality. If so, the court must conduct a careful balancing exercise. In any event, the court has a clear obligation to ensure, if necessary of its own motion, that this intrusive jurisdiction is not used inappropriately – even by consent. In exercising its responsibility, the court may well be assisted by submissions made on behalf of any third party the protection of whose interest requires to be considered.