Ltd, Paul Burtenshaw & Dial Time Plus Ltd v Robert Cooper & 5 Ors (2010)


On the facts of the case, a non-party disclosure order, under the CPR r.31.17 was not necessary in order to fairly dispose of a claim by a company against its directors and another company for breach of fiduciary duty.


The applicant company (D) applied for a non-party disclosure order against a non-party bank (S) under the CPR r.31.17. D had brought proceedings against its directors and a company (M) for breach of fiduciary duty and other duties by using M to appropriate a business opportunity belonging to D. In February, 2007 S had been sold shares in M and later subscribed for further shares. D had pleaded that the investment by S was a profit which the directors and M were liable to account for. A disclosure order was made against M, which it failed to comply with. M subsequently appointed administrators. The claim against the directors settled. An unless order was made against M arising out of its failure to comply with the disclosure order. It was ordered that unless M complied, its defence would be struck out and judgment entered for D for an amount to be assessed by way of profits or equitable compensation. D sought disclosure from S of documents relating to the shares.


The disclosure sought was not necessary to fairly dispose of the claim against M or to save costs. If the court proceeded on the basis that D would obtain a default judgment in accordance with the unless order all that would remain would be the detailed assessment of the account of profits or equitable compensation. If D proceeded with that assessment it would face no opposition from M. Insofar as D pursued its claim to recover the value of the business as at February, 2007, based on the value of the shares in the company at that date, D already had the essential information it needed to put forward for that purpose. Accordingly, it was not necessary for D to have disclosure of the further documents in order for the remainder of the claim against M to be disposed of fairly. Further, it would not be said that disclosure was necessary to save costs. If anything disclosure would increase costs for D, particularly if the normal order that D pay S's costs of providing disclosure was made.

Application refused