In addition to disclosure of documents in the possession of parties to the litigation, there are often useful documents in other non- parties’ possession which can assist and should be obtained and if there are difficulties in doing so, these can be obtained by way of an application to Court under CPR 31.17 and other methods.
How do I apply for a non-party disclosure order?
In litigation it is possible to obtain disclosure of documents from a third party who is not involved in the proceedings. An application needs to be made under the CPR Part 23 and supported by evidence (CPR 31.17).
The application must specify the documents or classes of documents sought from the respondent.
The court may make an order for non-party disclosure only where the following criteria or jurisdictional tests are satisfied:
- The documents are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings (CPR 31.17(3)(a)).
- Disclosure is necessary in order to dispose fairly of the claim or to save costs (CPR 31.17(3)(b)).
It is important to note that the court has discretion as to whether to grant an order for disclosure and an application is not guaranteed to succeed.
When can I make an application for non-party disclosure?
There must be ongoing litigation and an application cannot be made before proceedings are commenced. Usually the court will require all pleadings to have been concluded before any application for disclosure is granted as the pleadings stage will narrow the issues between the parties and therefore the disclosure.
An application for non-party disclosure can be made following judgment in proceedings particularly where disclosure would assist in enforcing judgment, as in the case of North Shore Ventures Ltd v Anstead Holdings Ltd and others  EWHC 178 (Ch).
What are the costs of an application for non-party disclosure?
The general rule (under CPR 46.1(1)(b) and 46.1(2)) is that the court will order the application to pay the respondent’s costs of the application and complying with any order made on the application e.g. costs of locating, producing and copying any documents. An award of costs however is at the court’s discretion and the court will take into account the parties’ conduct in making, complying with or opposing the application.
Other powers of the court to order non party disclosure
The non-party disclosure rule under CPR 31.17 does not limit any other power the court may have to order disclosure against a person who is not a party to proceedings (CPR 31.18). A party in proceedings can obtain disclosure from a non party in the alternative ways set out below
What is a witness summons?
An alternative way of obtaining documents from a non-party is to apply to the court for a witness summons which can be used to compel a witness to produce documents to the court or attend court to give evidence (CPR 34.2(1)).
If a witness fails to comply with the summons, he or she is at risk of being in contempt of court (CPR 81) and being liable for a fine or to pay any wasted costs that arise from non-compliance.
A party who is seeking the documents will complete the witness summons and issue this at court and this should clearly identify the documents being sought.
A witness can apply to set aside or vary a witness summons under CPR 34.3(4) and the court will set it aside if it considers the witness summons is oppressive or the documents are protected by public interest immunity.
What is Norwich Pharmacal relief?
A Norwich Pharmacal order (NPO) requires an individual or organisation involved in wrongdoing, whether intentionally or innocently but who is unlikely to be a party to the proceedings to disclose certain documents or information to the applicant.
You may wish to apply for an NPO to identify a wrongdoer, obtain the source of information contained in a publication, trace assets and identify the full nature of the wrongdoing to enable you to plead your case. A Norwich Pharmacal Order can be used in defamation proceedings where one can apply for an order for a website or social media platform to disclose details of a user account publishing defamatory statements about the individual or organisation (Totalise plc v Motley Fool Ltd  EWCA Civ 1897).
The applicant will normally be required to pay the respondent’s legal cots and the costs of providing the disclosure sought however can seek to recover these costs from the wrongdoer.
In accordance with the general rule under CPR 31, the information disclosed can only be used for the purpose of the proceedings in which it was disclosed (CPR 31.22). The respondent may be able to refuse to provide the information on the basis of privilege against self-incrimination.
Which application for non-party disclosure should I make?
There is often confusion regarding the type of application for non-party disclosure which should be sought: (i) Application under CPR 31; (ii) Witness summons; or (iii) Norwich Pharmacal Relief.
The scope of the documents that a non-party may be required to disclose under CPR 31.17 is wider and you should also consider that there will be different costs consequences depending on which method is adopted.
It is therefore important to obtain legal advice on the appropriate course of action for obtaining third party disclosure and we can assist you in the process.
Instructing our Litigation Lawyers
We ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before selecting the appropriate course of action in order to reduce time and expense. We can advise you from the outset and throughout the disclosure process to include disclosure from parties to the proceedings in addition to non parties.
Liability for costs is always an issue in litigation and based on our extensive litigation experience we provide our clients with as much strategic, practical as well as carefully considered legal advice in order to ensure minimum risk in respect of costs. Where appropriate we encourage the use of alternative dispute resolution (such as mediation and without prejudice negotiation) and our lawyer’s negotiation skills are first class. If early settlement at advantageous terms is not possible, we are extremely experienced and capable at navigating our clients through the litigation process.