When in litigation it is sometimes useful or necessary to obtain documentary evidence from third parties.
The recent case of The Secretary Of State For Transport v Pell Frischmann Consultants Limited sets out how a court should exercise its judicial discretion in such an application.
Broadly such documents can be obtained where they are likely to support/adversely affect a case and where disclosure is necessary to deal with a claim fairly or to save on costs.
Once documents are decided as relevant to the proceedings a complex balancing act has to be considered in which the non-party’s rights to confidentiality, privacy, costs and inconvenience have to be considered.
Only if necessity meant disclosure was required would it be ordered. On the facts here the non-party was a party likely to be added to the existing litigation (being a party to an arbitration at the time that shortly before the proceedings here had agreed to end the arbitration and to be consolidated in the ongoing litigation proceedings).
Parties thinking of applying to court to seek documents from other parties are advised to take legal advice as it may be easier and cheaper if the other party (claimant or defendant) was intending in any event in joining the other party to the litigation than to seek third party discovery.
