In Dare International Limited v Kayaam and others [2025] EWHC 903 (KB), Lavender J considered the principles relevant to an application under CPR r. 31.17 for an order for disclosure by a non-party.
The applicant (“Dare”) had brought a claim against a former employee (“Mr Ersen”) whom it suspected of having accepted an offer of employment by its main competitor, the Onyx Group of companies (“Onyx”). The trial of that claim was due to take place on 9 April 2025 and, on 10 March 2025, Dare applied for an order for non-party disclosure against three individuals who worked for, and seven companies which were part of, Onyx.
Dare sought disclosure and inspection of documents in four classes, namely (in paraphrase): (1)(a) communications between Mr Ersen and the individual respondents; (1)(b) internal communications between the individual respondents and other officers, employees or agents of the corporate respondents in respect of Mr Ersen’s recruitment/prospective recruitment; and (2)(a) communications between Mr Ersen and the corporate respondents; and (2)(b) internal communications between the corporate respondents in respect of Mr Ersen’s recruitment/prospective recruitment.
The application, heard by Lavender J on 18 and 20 March 2025, succeeded in part. The judgment is notable for the following points, which will be of interest to practitioners preparing and responding to applications under CPR r. 31.17.
1. First, the court affirmed, at [15] to [19], the established propositions of general application to the jurisdiction under CPR r. 31.17 that: (1) the provisions of CPR r. 31.17 are narrower than the underlying statutory provisions (s. 34(2) of the Senior Courts Act 1981) (Three Rivers District Council v Governor and Company of the Bank of England (No. 4) [2003] 1 WLR 210 (CA) at [28]); (2) the provisions of CPR 31.17(3)(a) are narrower than the test for standard disclosure (Henry v News Group Newspapers Limited [2011] EWHC 1364 (QB) at [21]); (3) the jurisdiction is an exceptional one (Frankson v Home Office [2003] 1 WLR 1952 (CA) at [10]); (4) the CPR r. 31.17 criteria are “very strict” (Flood v Times Newspapers Ltd [2009] EMLR 18 (QB) at [72]); and (5) the onus is on the applicant to establish that the court has power to make the order sought (WH Holding Limited v E20 Stadium LLP [2018] EWHC 2971 (Ch) at [26]).
2. Second, Lavender J held that it was not necessary, at least in the circumstances of this case, where trial was “impending” [25], for a prior application for specific disclosure against a party to have been made and determined before the court could exercise its powers in respect of a non-party.
3. Third, it is, in principle, permissible to seek disclosure of a class of documents “in respect of” a matter; such wording will not render the class of documents sought too wide [27].
4. Fourth, Lavender J declined to hold that an applicant for non-party disclosure has to prove that the documents sought exist [31]. Although in Re Howglen Ltd [2001] 1 All ER 376 (ChD) Pumfrey J had held (at 383B) that “the court must be satisfied that the documents do in fact exist, since it is not right to send the non-party off on a search before it can satisfy itself that no such documents do in fact exist”, Lavender J (concurring with a dictum of HHJ Toulmin QC in Pride Valley Foods Ltd v Hall & Partners (Contract Management) Ltd [1998] TCC 574) determined that a dispute as to whether a document exists:
“should be considered in the context of the relevance test on the basis that a document which does not exist is not, in the words of the relevance test, ‘likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings’” [31].
5. Fifth, objections to disclosure on grounds of privilege or confidentiality are “catered for” by CPR r. 31.17 [66] – presumably by the mandatory provision in CPR 31.17(4)(b)(ii) that any non-party disclosure order must require the respondent to specify documents in respect of which a duty or right to withhold inspection is claimed. Such considerations will not, therefore, in themselves justify a conclusion that the ‘necessity test’ is not satisfied.
The judgment is available here.
Mohinderpal Sethi KC, leading Ming-Yee Shiu and Joseph Bryan, instructed by Pinsent Masons LLP, represented the respondents.
