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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Secretary of State for Transport v Pell Frischmann Consultants Ltd [2006] EWHC 2756 (TCC) (23 October 2006) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2006/2756.html Cite as: [2006] EWHC 2756 (TCC) |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
133-137 Fetter Lane London EC4A 1HD |
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B e f o r e :
____________________
| THE SECRETARY OF STATE FOR TRANSPORT |
Claimant |
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| v |
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| PELL FRISCHMANN CONSULTANTS LIMITED |
Defendant |
____________________
A subsidiary of Ubiqus Reporting UK
Official Court Reporters
Clifford's Inn, Fetter Lane. London EC4A 1LD
Tel: 0207 269 0370 Fax: 0207 405 9884
MR JAMES CROSS Q.C. (instructed by Beale & Co.) appeared on behalf of Pell Frischmann Consultants Limited.
MR ADAM CONSTABLE (instructed by Wragge & Co.) appeared on behalf of Amec Civil Engineering Limited.
____________________
Crown Copyright ©
MR JUSTICE JACKSON:
Part 1 - Introduction
Part 2 The Facts
"As you are aware from previous correspondence, your client has much documentary evidence that will be relevant both to the Court Action and to the arbitration between our respective clients. This includes documentation that will prove of assistance to my client's case in the Court Action
My client now requires that the following four categories of document be provided by AMEC for disclosure in the Court Action:
1. manufacturing data records for the roller bearings, including, specifically, records of heat treatment, roller and plate design and material certificates for all the steel used to manufacture the rollers and plates;
2. minutes from meetings recording how and why bearing material was chosen for the roller bearings;
3. tender documents for the roller bearings and FIP/AMEC sub-contract, including but not limited to drawings/schedules; design parameters; specifications; bills of quantities; conditions of contract; and method of measurement;
4. copies of all correspondence between AMEC and FIP relating to the Thelwall Viaduct renovation;
5. correspondence to/from any parties, pursuant to Clause 8B of the AMEC/SST contract.
Please respond to this letter, providing the above documentation, by 7th July 2006. Should your client again refuse to provide these documents by that date my client anticipates that it will make an application in the Court Action against your client for non-party disclosure under CPR 31.17."
"We are aware, of course, that a limited number of documents were provided by our client to a representative of the Highways Agency on a voluntary basis some time ago. In view of the fact that those documents were already in the Secretary of State's possession, our client saw no purpose in declining the request to allow them to be disclosed to your client. However, the further documents requested by the Treasury Solicitor in its letter of 29th June 2006 (and we are unsure of the circumstances in which correspondence between this firm and the Treasury Solicitor has been disclosed to you) have not been provided, for the very good reason that the Treasury Solicitor's request anticipated the process of disclosure in the arbitration, and was made at a time when it was neither convenient nor appropriate to require our client to undertake it. We would add that at the time that we declined to provide those documents voluntarily, it was our understanding that no order had been made relating to disclosure (in relation to the issue of the bearings) in the proceedings to which your client is a party.
Your letter now requests not only extensive correspondence, but also very many documents that have arisen in connection with the entirely private arbitration between our client and the Secretary of State for Transport, who, we would add, is not currently entitled to many of the documents to which you refer. You also assume, wrongly, that it would be an easy task to provide you with such documents by the end of next week. With respect, it is not for you to determine what our client's priorities in this matter should be."
Part 3 The Present Application
" 1. Manufacturing data records for the roller bearings and plates, including - but not limited to - records of heat treatment, roller and plate design and material certificates in respect of all the steel used to manufacture the rollers and plates.
2. Minutes of meetings and all other documentary records recording and/or evidencing how and why materials for the roller bearings and plates were chosen/selected.
3. Tender (and other contract) documents in respect of sub-contract between the Respondent (AMEC Civil Engineering Limited) and FIP Industriale S.p.A ("FIP") for the manufacture and supply of the roller bearings and plates, including - but not limited to drawings/schedules; design parameters; specifications; bills of quantities; conditions of contract and method of measurement.
4. All correspondence between the Respondent (AMEC Civil Engineering Limited) and FIP relating to the Thelwall Viaduct renovation works.
5. All correspondence between the Respondent (AMEC Civil Engineering Limited) and any other party (including the Claimant and the Defendant) pursuant to and/or relating to Clause 8B of the main contract for the renovation works between the Claimant and the Respondent."
Since AMEC is not a party to the litigation between the Secretary of State and Pell Frischmann, this application for disclosure was made pursuant to section 34 of the 1981 Act and CPR rule 31.17. It should be noted that the five categories of documents identified in Pell Frischmann's application are substantially the same as the five categories requested in the Treasury Solicitor's letter dated 29th June 2006.
"During the course of recent weeks, following the service of pleadings in the arbitration, we have been in negotiation with the Treasury Solicitor over the possibility of streamlining the proceedings, and to that end we concluded an agreement with the Treasury Solicitor on Wednesday evening of last week whereby the arbitration is to be discontinued and jurisdiction conferred on the Court to determine the disputes which have formed the subject matter of the arbitration.
The agreed terms are currently being embodied in draft consent orders which are being passed between Counsel, and a term of the consent order in the proposed High Court proceedings is that there will be a joint application to the Court to have the action between our client and the Secretary of State for Transport consolidated with, or alternatively tried on the same occasion as, action number HT-02-485, and if and insofar as may be necessary, our client will be joined as Second Defendant to that action
You will appreciate of course that disclosure in the consolidated proceedings will relieve your client of the burden of costs associated with the application pursuant to Part 31.17."
Part 4 The Law
"On the application, in accordance with rules of court, of a party to any proceedings the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who is not a party to the proceedings, and who appears to the court to be likely to have in possession, custody or power any documents which are relevant to an issue arising out of the said claim
(a) to disclose whether those documents are in his possession, custody or power, and
(b) to produce such of those documents as are in his possession, custody or power to the applicant "
"(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.
(2) The application must be supported by evidence.
(3) 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."
"29. Second, the threshold condition in rule 31.17(3)(a) is lowered by the qualification "likely to". It is not necessary that the documents of which disclosure is ordered will support the applicant's own case or that they will adversely affect the case of another party; it is enough that they are likely to do so. The explanation for that difference is also obvious; the rule-making body appreciated that an applicant cannot be expected to specify which documents under the control of another which he may never have seen will support his case or adversely affect that of another party, or to know whether he will wish to rely upon them. It is further appreciated that the person against whom disclosure is sought being a stranger to the dispute - cannot be expected to decide for himself which of the documents under his control do support the applicant's case or adversely affect the case of one of the other parties to an action in which he is not a party. Nor can the court be expected to decide whether documents which it has not seen will support the applicant's case or adversely affect that of another party. The test has to be one of probability. The question, of course, is what degree of probability does the test require.
30. The judge found assistance in the judgment of Rix LJ in Black v Sumitomo Corporation [2002] 1 WLR 1562. The question in that case was whether pre-action disclosure should be ordered pursuant to section 33(2) of the Supreme Court Act 1981 and CPR r 31.16. Rix LJ, with whose judgment Ward and May LJJ agreed, identified two questions: (i) whether section 33(2) of the 1981 Act required that it be likely that proceedings are issued, or only that the persons concerned are likely to be parties if subsequent proceedings are issued; and (ii) whether "likely" means "more probable than not", or "may well". He held, at page 1584, para 71, in answer to the first of those questions, that the requirement was no more than that the persons concerned were likely to be parties in proceedings if those proceedings were issued. He went on to say, at pages 1584 to 1585, para 72:
"As to the second question, it is not uncommon for 'likely' to mean something less than probable in its strict sense. It seems to me that if I am wrong about the first question, then it is plain that 'likely' must be given its more extended and open meaning (see Lord Denning MR in Dunning v United Liverpool Hospitals' Board of Governors [1973] 1 WLR 586), because otherwise one of the fundamental purposes of the statute will have been undermined. If, however, I am right about the first question, the second question is of less moment. Even so, however, I am inclined to answer it by saying 'likely' here means no more than 'may well'. Where the future has to be predicted, but on an application which is not merely pre-trial but pre-action, a high test requiring proof on the balance of probability will be both undesirable and unnecessary: undesirable, because it does not respond to the nature and timing of the application; and unnecessary, because the court has all the power it needs in the overall exercise of its discretion to balance the possible uncertainties of the situation against the specificity or otherwise of the disclosure requested. Clearly, the narrower the disclosure requested and the more determinative it may be of the dispute in issue between the parties to the application, the easier it is for the court to find the request well-founded, and vice versa."
He observed, at page 1585, para 73, that, apart from the two questions of principle which he had identified, the word "likely" itself presented difficulties: "Temptations to gloss the statutory language should be resisted. The jurisdictional threshold is not, I think, intended to be a high one."
31 Mr Hollander submitted that the judge was wrong to place reliance on those observations. It is said that there is no real parallel between the provisions relating to pre-action discovery which were under consideration in Black v Sumitomo Corporation [2002] 1 WLR 1562 and the provisions relating to discovery against third parties which fall for consideration in the present case. We reject that submission. It seems to us that there is a close parallel between rules 16 and 17 in CPR Part 31; as there is between the statutory provisions to which those rules are respectively intended to give effect. In particular, it is plain that the word "likely" has a common root in the provisions of sections 31 and 32 of the Administration of Justice Act 1970; that that word is used in the same sense wherever it appears in sections 33(2) and 34(2) of the Supreme Court Act 1981; and that that word is used in the same sense in CPR r 31.16(3)(a) and (b). It would be remarkable if the rule-making body had intended the same word to be understood in a different sense in rule 31.17(3)(a).
32 In those circumstances, unless there were reasons which compelled a different conclusion, we would think it right to reject the submission that the word "likely", in the context of the threshold condition in rule 31.17(3)(a), means "more probable than not"; and to hold that the word has, in that context, the meaning "may well" which this court thought it should bear in rule 31.16(3)(a) and (b). We are not persuaded that there are reasons which compel a different conclusion. Indeed, it seems to us that the reasons which led this court to reach the conclusion which it did in Black v Sumitomo Corporation have equal force in the context of rule 31.17(3)(a). As Rix LJ pointed out, a high test requiring proof on the balance of probability would be both undesirable and unnecessary, for the reasons which he gave."
1. The court, under rule 31.16, is considering the need for early disclosure. The documents in question are not likely to be withheld for ever (if the action proceeds). By contrast, the court, under rule 31.17, is considering whether the documents should be disclosed at all. This is a general consideration which militates in favour of ordering disclosure under rule 31.17. Where the test in rule 31.17(3)(a) is satisfied, disclosure may well be necessary in order for the court to dispose of the action fairly.
2. The parties to an application under rule 31.16 are already locked in a legal dispute. They both have an interest in the documents for that reason. By contrast, the parties to an application under rule 31.17 do not usually have a pre-existing dispute. The respondent to an application under rule 31.17 usually has an interest in the documents, which is quite different from the applicant's interest. In most applications under rule 31.17 the respondent has no involvement in the applicant's litigation. The respondent's concern may simply be to protect the confidentiality of his own documents. This is a general consideration which militates against ordering disclosure under rule 31.17.
3. Upon analysis, it can be seen that the competing interests which the court is called upon to balance in an application under rule 31.17 are fundamentally different from the competing interests which the court is called upon to balance in an application under rule 31.16. See, for example, Franks v The Home Office [2003] EWCA Civ 655; [2003] 1 WLR 1952.
"14.106: The second jurisdictional condition, that disclosure is necessary in order to dispose fairly of the claim or to save costs, should give rise to fewer problems. In most cases it is likely to involve considerations such as whether the documents add significantly to what is already known, or whether the likely benefits of disclosure justify the expense. But in some cases the court may need to strike a balance between the applicant's need for access to the documents and some other competing interest, such as public interest immunity. On occasion the court may have to balance the applicant's need for particular documents against the respondent's legitimate interest in keeping them private. Privacy does not provide immunity from disclosure, but the court is entitled to consider whether it is necessary to infringe a person's privacy in order to enable a party to legal proceedings to prosecute his case. There may well be circumstances where the incursion into the non-party's privacy would be so great and the benefits of disclosure so small that the court would decline to order disclosure.
14.107: Although the scope of documents that a non-party may be required to disclose under such an order is wider than the documents that a non-party may be required to produce in response to a witness summons under CPR 34.2, the court must take great care not to impose too heavy a burden on non-parties
14.108: The jurisdictional conditions of CPR 31.17(3) are necessary conditions, not sufficient conditions. An applicant that establishes the conditions will not necessarily succeed because the final decision will depend on the court's assessment of the competing interests of the party and the non-party. The court has to have regard not only to the interests of the party seeking disclosure but also the non-party's interest in protecting his privacy, confidentiality or other interests."
I respectfully agree with this passage.
Part 5 - Decision
