Whether non-party can discharge a disclosure order

A judge granted a specific disclosure order against the defendants and included a confidentiality provision in that order which required the parties to agree appropriate terms of confidentiality so as to protect their own interests and the interests of two non-parties. A confidentiality club was consequently agreed by the parties (i.e. only specified individuals could have access to the documents) but the two non-parties applied to have the disclosure order varied.  

CPR r31.19 allows a party to resist inspection and non-parties to make representations to the court, but the defendants did not choose to resist inspection. Accordingly, the non-parties sought to rely on CPR r40.9 which provides that “a person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside”.  

Roth J held that CPR r40.9 was wide enough to allow a non-party to contend that inspection of a document ordered against a party will involve disclosure of its confidential business secrets (especially since the two non-parties were referred to in the order itself). That was the case even though CPR r31.19 allows a non-party to object only if a party objects to disclosure.  

Although the judge was not prepared to discharge the order, he did agree to tighten the confidentiality club, so that it should be restricted to one or two nominated experts (who each provide a written undertaking of confidentiality to the court) and identified individuals in the claimant’s external English law firm (and counsel). A German lawyer instructed by the claimant was not to be included in the club though: “as a foreign lawyer, he is not an officer of this court”.