Sarayiah v Royal And Sun Alliance & Ors

This is an appeal by Mr Isaac Sarayiah against the order of HH Judge Freeland QC, sitting at the County Court of Central London dated 25 May 2017, dismissing the appellant's application for a disclosure order against a third party, namely, RSA PLC. The application was pursuant to CPR 31.17 and 18. The learned judge recorded that the application was totally without merit and ordered the appellant to pay RSA PLC's costs of the application, which he summarily assessed in the sum of £4,000. The appellant appeals all the aspects of that order, pursuant to permission granted by Arnold J.

Before me the appellant has represented himself, and has done so very ably. The respondent, RSA, is represented by Mr Asquith of counsel.

It is necessary to set out part of the unfortunate history of this matter in order to explain how we have arrived at this point.

The matter arises in the context of a claim by the appellant against Pamela and Camilla Sarayiah, the appellant's sisters. The claim is brought under s.3 of the Protection from Harassment Act 1997, pursuant to which the appellant seeks injunctive relief and damages.

As the learned judge set out in his admirably succinct judgment, the appellant contends that his two sisters (defendants to the main claim) have embarked on a course of conduct of harassment against him since about July 2014. It is not necessary for me to go into the details of the claim itself save perhaps to say that one of the allegations contained in the Particulars of Claim, at paragraph 24, is that in November 2015 the defendants removed the appellant as an interested party on the building and contents policy held with More Than Insurance, which is an associated company of the respondent to the appeal. He alleges in that paragraph that the defendants did this between 13 and 18 November 2015, and that as a result, if any damage were to occur to the house, such as a broken window, water damage from a leak, a blown down fence or tiles due to extreme winds, or damage to or loss of contents in a burglary, etc, he would not be able to make a claim, and would suffer considerably.

The reference in the Particulars of Claim to the appellant being removed as an interested party is allied to the subject matter of the application made to HH Judge Freeland QC, because what the appellant was seeking in his application for a disclosure order was a tape recording. This recording was admittedly in the possession of, and had been made by, the respondent. It was the recording of a telephone conversation between a representative of the respondent and one of the defendants in 2015. The appellant maintains that it is disclosable as relevant to the claim for harassment which he is making against the defendants.

The appellant states that for approximately 12 months leading up to the hearing before the learned judge, he had been in communication with the respondent seeking a copy of the tape recording of the conversation. Although summarising quite considerably, I believe it is fair to say that the respondent's approach to the several requests made by the appellant was as follows: the respondent was not in a position to provide him with a copy of the tape recording because (1) the appellant was not an executor of his mother's will (her executors being the defendants), and (2) on the face of it the insurance policy was taken out by his

I believe it is accepted that the respondent did not indicate that it would be happy to provide the recording if the defendants, who were the executors, requested it. The respondent did not at any stage suggest to the appellant that the appropriate course was for him to make an application under CPR 31.12 against the defendants. That is not perhaps surprising, as it was not the duty of the respondent's solicitors to give the appellant legal advice. However, in the course of the correspondence the appellant indicated that, if he did not receive cooperation, he would make an application for third party disclosure of the tape in question. In that correspondence he made reference to a Norwich Pharmacal application. Ultimately, as I have said, the application that he made in March 2017 was pursuant to CPR 31.17 rather than a Norwich Pharmacal application.

By way of further background, I should say that the appellant also made a request to his sisters, the defendants. However, there had been a complete breakdown of relationships, and they took the view throughout that they were not prepared to assist him in obtaining the tape recording.

There is another matter, upon which Mr Asquith placed considerable reliance. In about October 2016, well before the application came before the learned judge, there had been an exchange of requests for disclosure and disclosure lists by the parties. In the appellant's disclosure list, he referred to documents which exist or may exist and which may be relevant to issues in the case, including "copy of phone conversation between Camilla Sarayiah (believed to be Camilla) and More Than Insurance between 13 November and 20 November 2015". He also referred to copies of all correspondence and notes of communications between the defendants and the respondent insurance company. In relation to the “copy of phone conversation”, under the rubric "Where it may be found", the appellant stated "on More Than Insurance systems".

In the defendants’ disclosure report or list of documents, under the rubric "I have control of the documents numbered and listed here but I object to you inspecting them", there is a reference to "Copy of phone conversation between defendants and More Than" (the word "Insurance" is missing); and "Copies of correspondence between defendants and More Than Insurance between 13 November 2015 and 20 November 2015." In a later passage in the document it is stated: "I object to you inspecting these documents because:". The explanation given is that it “relates to an estate matter and is irrelevant for disclosure in this harassment case." Then this appears: "CS's statement also explains conversations in essence. No recording exists in defendants' possession." That document is dated 25 November 2016. I will endeavour to explain the relevance of it in due course.

The matter now under appeal came on, as I have said, before HH Judge Freeland QC on 25 May 2017. Then, too, the respondent appeared through Mr Asquith, and the appellant appeared in person and without representation. The defendants were unrepresented but present in person. As I understand it, they took part in the hearing to some extent.

The approach of the respondent at that hearing is summarised in Mr Asquith's skeleton argument. The position it took was one of active opposition to an order against the respondent. Mr Asquith had contended that the appellant's application should be refused with costs in favour of the respondent. He accepted that the defendants had control over the documents being sought; he made reference to the disclosure lists which I have just mentioned; and he stated that the defendants considered the documents to be irrelevant to the claim. The respondent further submitted that, even if that was wrong, the application was misconceived because it should have been brought against the defendants under CPR 31.12 rather than against the respondent under 31.17.

The respondent’s skeleton went on to state:

The main point taken by the third party, RSA, was that the disclosure sought was not necessary for the purposes of CPR 31.17(3)(b) because it could be obtained from the defendants.

The judge refused the application. Having set out some of the circumstances which I have just described, and having referred to the argument of the appellant and to his witness statement and submissions, he said:

Having then referred to the criteria under CPR 31.17 and 18, and to the respondent's arguments, the Judge recorded the defendants’ submission that the application was a fishing exercise, and that the documents were entirely unnecessary for the fair disposal of the action. Then he said this:

He then referred to the conditional offer by the respondent mentioned earlier in this judgment, and continued:

The Judge was invited by Mr Asquith to record, if he considered it appropriate, that the application was "totally without merit". He acceded to the application, repeating:

The unhappy saga continued. Taking up the suggestion of the Judge, the appellant made an application to the court against the defendants, his sisters, pursuant to CPR 31.12. That came before HH Judge Parfitt in the Central London County Court on 15 September 2017. Again, the defendants were present, as was the appellant, but on this occasion neither Mr Asquith nor his client were present.

It appears, from what the appellant says, that both he and the defendants were somewhat surprised to find that HH Judge Parfitt was at first under the impression that he was dealing with an application of some kind by the defendants, instead of an application by the appellant under CPR 31.12. We do not have a copy of a judgment of Judge Parfitt, but his order records:

Apparently the hearing took about half an hour. It is not clear why the court made the finding that the relevant tape recording was not in the control of the defendants. The appellant states that, although in the course of that hearing there was some discussion about where the tape recording was, the defendants did not inform the court that the tape recording (or a copy of it) had apparently been in their possession since 31 May 2017 - several months before that hearing.

No more than a day or two before today’s hearing, Mr Asquith's clients disclosed to the appellant, and to the court, correspondence between the respondent and the defendants immediately following the decision of Judge Freeland in May 2017. This correspondence purports to show that on 26 May 2017 Camilla emailed the solicitors for the respondent and asked them if they would provide a copy of the tape recording of the phone call "that I made to More Than Insurance (RSA) around November 2015 regarding my late mother's original policy (Mrs Hannah Sarayiah)." On 31 May the solicitor responded to her:

In a letter sent to the defendants dated 4 April 2018 (that is a few days ago) and copied to the court, the solicitors for the respondent state:

Thus, the appellant, having first applied for disclosure under r.31.17 and been rejected, on the ground that he had an alternative means of obtaining disclosure (CPR 31.12), and having then taken that alternative course, is told that that course, too, does not apply, because the tape recording was not in the control of the defendants. In fact, at the time he appears to have been told this by Judge Parfitt, at the hearing in September 2017, the tape had apparently been in the defendants’ possession for several months.

With that unhappy background, I come to the grounds of appeal. The appellant, with considerable skill, has challenged on a number of grounds the decision of HH Judge Freeland QC to refuse his original application. One of the grounds, which Mr Asquith described as “the meat of the appellant’s case”, is an assertion that the judge was wrong to find that the defendants were also a source of the information sought, because the defendants did not at that time have the information, ie. the tape recording, in their possession. The appellant also argues that the judge did not address correctly the criteria in CPR 31.17. In that respect he has cited a considerable amount of case law, which has been the subject of argument before me. He further complains that the judge failed to take into account that the appellant had already tried unsuccessfully to persuade the defendants to request the information from the respondent and that the defendants had steadfastly refused, including when the matter was raised again at the hearing before the judge. The appellant also submits that by requiring him to, as he put it, “go around the houses again” by making a further application, this time under CPR 31.12, the judge failed to take proper account of the overriding objective set out in CPR 1, thereby increasing the appellant's costs and the judicial resources required.

As an alternative submission, the appellant suggests that if the judge was not going to grant the order sought under 31.17, he ought to have exercised his discretion to abridge time and ought to have heard the application under CPR 31.12 immediately, given that there would be no prejudice to the defendants as all the evidence was identical and the defendants were present at the hearing. That would have precluded the need for a further application and a further hearing. He submits that the judge erred in not taking into account, as a factor in deciding the matter, the appellant's means and his situation, as a litigant in person who is impecunious and on benefits.

Those, broadly speaking, are the main points made by the appellant in the appeal.

In his able and forceful submissions, Mr Asquith seeks to uphold the learned judge's decision. He contends that, in deciding that the criterion of necessity in CPR 31.17(3)(b) was not satisfied given that the appellant had an alternative means of obtaining the tape recording, namely an order against the defendants under CPR 31.12, he correctly applied CPR 31.17.

In the course of his submissions and, indeed, those of the appellant, I have had drawn to my attention several authorities which deal with an application of this kind against a third party. The criteria are relatively well-established. The relevant CPR rule requires the application to be supported by evidence. There was no contention in this court or in the court below that that requirement was not complied with. The rule then goes on to state that 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. As to that, no real issue was taken by the respondent at the hearing below. For, although the defendants had stated that they regarded the tape recording as irrelevant, the fact remains that it was expressly relied upon by the appellant in the Particulars of Claim. Further, in his evidence he indicates why in his submission the recording supports his case and is adverse to the case of the defendants. The only comment on this point by the judge was: "whether this, namely, the tape recording, is referable in any way to the pleaded causes of action is perhaps a matter of debate but not one upon on which I need to rule today."

The real battleground, upon which the matter was ultimately determined, was the next criterion, namely, that the disclosure in question must be necessary in order to dispose fairly of the claim or to save costs. In relation to that, the notes at paragraph 31.17.4 of the current edition of the White Book record that the court has a wide discretion but

“Disclosure is restricted to those cases where it is necessary for one or both of the reasons stated. This is unlikely to be the case where the documents are available from another source… Ordering disclosure against non-parties is the exception rather than the rule … and the jurisdiction should be exercised with caution."

The issue of “necessity” has been the subject of a number of decisions. I will refer briefly to some of them. A decision of King J in Campaign Against Arms Trade v BAE Systems PLC [2007] EWHC 330 (QB), concerned an application under the Norwich Pharmacal jurisdiction rather than CPR 31. At paragraphs 16 and 20 of his judgment, King J said this with respect to the requirement for necessity:

One bears in mind that that was a Norwich Pharmacal application. In CPR r.31.17 the requirement of necessity is expressly stipulated as a condition of the relief. However, in my view there is no good reason why the substance of what is “necessary” for the purpose of CPRr.31.17should differ. Therefore, the dicta of King J also provide guidance in applying CPR 31.17.

Reference was also made to Mohammed v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048, a decision of the Divisional Court where, again, the issue of “necessity” arose in a Norwich Pharmacal context. Thomas LJ (as he then was) said at paragraph 94 of the judgment:

Finally, in Omar v Secretary of State for Foreign and Commonwealth Affairs [2013] EWCA Civ 118, a decision of the Court of Appeal, Maurice Kay LJ, at paragraph 30, once more in the context of the Norwich Pharmacal jurisdiction, said:

Mr Asquith has vigorously submitted that there is no error or omission of any significance in the analysis of the learned judge below. I bear in mind that the hearing below was no doubt relatively brief, and merely one in a lengthy list of cases to be dealt with. However, the judge did not make reference to the flexible nature of the concept of necessity for this purpose, or to the fact that the precise scope of the concept falls to be determined in the light of the facts of a particular case. Nor, did he refer, expressly at any rate, to the fact that, provided the “necessity” criterion in sub rule (3) of this rule is satisfied having due regard to the flexible nature of the concept understood in the light of all the circumstances, there is an overarching discretion to grant or refuse an order of this kind. One is unable to see from the judgment what, if any, considerations the judge took into account, other than the fact that he considered there was, potentially at any rate, an alternative means of obtaining the information, namely an application against the defendants directly under CPR 31.12.

In addition, as discussed in the course of argument, the way in which the learned judge expressed himself in the passages to which I have referred suggest that he considered there was, by reason of that alternative source, if not an absolute bar then an almost insuperable obstacle to granting or even considering on its merits an order against the third party under CPR r.31.17.

In these circumstances, notwithstanding Mr Asquith's argument to the contrary, one cannot be satisfied that the judge directed himself to other considerations which were relevant to the criterion of necessity, such as those to which King J referred, including the resources or other circumstances of an applicant for relief. In this case the applicant is an impecunious litigant in person who seeks a document which undoubtedly exists in the possession of the third party, namely the tape recording. It is, moreover, clear that the defendants are unwilling to cooperate with the appellant in obtaining a copy the recording. There is nothing in the judgment to indicate that those factors have been taken into account.

The other question which, in my view, ought to have been considered is whether, on the basis of the circumstances known to the judge, the alternative application under CPR 31.12 that he thought provided an appropriate alternative source, thereby precluding an order under CPR 31.17, would itself have been problematical. That raises the further question whether the court would, in the circumstances known to it at the time, have had jurisdiction under CPR 31.12 to make an order against the defendants in respect of the tape recording. The judgment below proceeded on the basis that there is very little, if any, doubt that it would, as Mr Asquith has submitted to be correct.

It is accepted, in the light of the authorities and the rule itself, that documents would have to be in the “control” of a litigant in order for an order to be made. It is clear that the defendants would not have had (in the words of CPR 31.8) “physical possession” of the recording. They might only have had, at best, “a right to possession of it”. That is one of the three instances where documents are considered by the Rule to be in the “control” of a litigant for this purpose.

I was referred by the parties to several authorities on the meaning of “control”. In particular, both the appellant and the respondent referred me to a decision of the Court of Appeal, on appeal from Lloyd J (as he then was), in North Shore Ventures Limited and Anstead Holdings Inc. [2010] EWHC 2648 (Ch). In that case the Court of Appeal considered the relevant authorities at some length Various dicta in those cases were relied upon, including a passage (quoted at paragraph 28 of the Court of Appeal’s judgment) from the speech of Lord Diplock (with whom the other members of the Judicial Committee of the House of Lords agreed) in the well-known Lonrho Limited v Shell Petroleum Co Ltd [1980] 1 WLR 627 case. At page 635, Lord Diplock said:

Unsurprisingly the appellant places considerable reliance on that passage, in the light of the respondent's argument that, because the respondent had indicated at the hearing before the judge that it was willing to provide the tape recording to the defendants on their requesting it, that made the question of control for the purposes of CPR 31.12 a non-issue.

Also cited by the Court of Appeal, at paragraph 30 of the judgment, was the following statement of Shaw LJ in the Lonrho case:

The Court of Appeal also referred to the judgment of Floyd J (as he then was) in Schlumberger Holdings Limited v Electromagnetic Geoservices AS[2008] EWHC 56 (Pat), where the judge said:

In North Shore Ventures (above) monies, allegedly obtained in breach of trust, had been put into a trust by a party, apparently beyond that party’s own reach. The alleged trust was held to be a sham, and the question was whether documents were within the party’s control within the meaning of CPR 31.8. At paragraph 40 the Court of Appeal said this:

Mr Asquith relies upon the last two sentences of that quotation as indicating, as it does appear to, that the concept of control is not limited to the three examples given in CPR 31.8, and also as implicitly supporting what he submits to be the judge's finding, that the tape recording was to be regarded as within the control of the defendants and, therefore, that it was not “necessary” to obtain the recording from the third party under CPR 31.17. However, it is not possible to see whether the potential issue of jurisdiction to grant an order against the defendants under CPR 31.12 played any part in the learned judge's decision in the present case.

Mr Asquith submits that jurisdiction was not an issue, and he points out that, at the stage where he was dealing with the criterion of necessity, the judge referred to the disclosure lists. However, the disclosure lists do not take the matter very far. A clear distinction is drawn in the defendants' lists between what is said to be "a copy of a phone conversation" (that being the wording used by the appellant in his own list) and what the defendants say later by way of objection: "no recording exists in the defendants' possession". It is not clear to what the defendants intended to refer by "a copy of a phone conversation", which was said to be in their control. It is possible that they had a note of a conversation that Camilla had had with the respondent. Nor is it at all clear that in that phrase they are referring to the tape recording. The doubt is increased by their statement that they have no recording of their own.

There is, therefore, nothing to indicate that the learned judge actually directed his mind to the difficulties that the appellant might well encounter if he were to make an alternative application under CPR 31.12 against the defendants. In those circumstances, given that the judge appears to have considered that the very possibility of such an application precluded an application for disclosure against the respondent, I consider that he misdirected himself as to the appropriate approach in an application of this kind, and, in particular, as to how the question of necessity should be approached.

In the light of this, and of the other relevant factors which do not appear to have been taken into account, the decision to refuse the application cannot stand, and the appeal should succeed.

The question then arises whether I should remit the matter to the court below to reconsider it in accordance with this judgment and the applicable case law, or whether I should consider

Mr Asquith has submitted that, in doing so, I should not take account of what happened after the hearing and decision below. I consider that is right in the circumstances. As already noted, it now appears that, following the determination of the original application, the defendants obtained a copy of the tape recording from the respondent. It is most unfortunate that the defendants did not mention to HH Judge Parfitt that they actually possessed a copy. Of course, the defendants are not now present in court to comment on what actually happened, either with respect to the apparent receipt of a copy, or at that hearing. However, on the face of it, they apparently allowed HH Judge Parfitt to conclude that they did not have access to the recording, and to use that as a reason for refusing the appellant's application under CPR 31.12.

I have come to the conclusion, in all the circumstances, that the fact (if it be so) that after the decision below the defendants apparently acquired a copy, cannot of itself preclude the ability of the court now to make an order under CPR 31.17, or determine the way in which the court should exercise its discretion. It would be wholly undesirable and inappropriate, both generally and having regard to the overriding objective, for me to be obliged to refuse the application by reason only of the fact that there may now be jurisdiction to make an order under CPR 31.12. That would result in this issue being further prolonged and would involve further use of finite court time and resources, and, further, stress and expense for the appellant. Nor do I consider that to be the position under CPR 31.17. In all the circumstances, the apparent existence of jurisdiction under CPR 31.12 is not a factor which would, by itself, prevent an order in favour of the appellant under CPR 31.17.

In my view the criterion under CPR 31.17(3)(a) is clearly satisfied on the evidence. It is clear in light of the case law that the condition that the documents sought are likely to support the case of the applicant or adversely affect the case of the other party to the proceedings, is to be regarded as a requirement that they may well fulfil that role, and not as being in any way a requirement that the balance of probabilities should be satisfied. The material before me indicates that the tape recording is a document relevant to the harassment claim that is being brought by the appellant, and easily satisfies the criterion in question.

I turn to the criterion of necessity in CPR 31.17(3) (b), i.e. whether disclosure from the third party is “necessary”, in order to dispose fairly of the claim or to save costs. The appellant contends that the reference to saving costs is relevant here because, if he has to make a yet further application under CPR 31.12, and even if he would be likely do so successfully in view of the situation which has become known to him over the last few days, it would increase his costs, and the stress he has experienced, and would cause further prolonged delay.

His reference to saving costs is probably not apposite, as it is not clear to me that the Rule is referring to saving costs in that sense. Therefore, I do not consider it right to rely on the basis that costs may be saved by the order sought.

However, I do consider that an order for disclosure against the respondent is necessary to dispose fairly of the claim. As seen, the concept of “necessity” is to be interpreted in a flexible way, in the light of all the circumstances. As indicated earlier, the fact that there may be an alternative remedy is not determinative, particularly when, if required to pursue that remedy, the appellant would have to make a yet further application, in circumstances

For those reasons, I consider that the requirements of CPR 31.17 are satisfied, and that I

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