In a recent case, enquiry agents instructed by a judgment creditor had searched through documents discarded as rubbish on the pavement outside the London offices of the judgment debtors, made copies of relevant documents, and returned the originals to the bin bags. The copy documents were adduced as evidence in support of an application for committal for contempt of court. The judgment debtors sought disclosure of documents relating to the activities of the enquiry agents, so that they could pursue their argument that the documents had been obtained illegally and should be excluded from evidence.

The Court of Appeal endorsed the judge's conclusion that there was not even a prima facie case of unlawfulness, whether on the basis of theft, trespass or breach of confidentiality. It therefore refused the application for disclosure: Consolidated Contractors International v Masri [2011] EWCA Civ 21.

The judgment is also of interest regarding the extent to which the source of information in an affidavit or witness statement must be identified. The judgment creditor's solicitor had sworn on affidavit that the enquiry agents had confirmed that they had used these methods previously and that their conduct had not been criticised by the court. The judgment debtors sought an order requiring the solicitor to identify the source of this information by name, based on paragraph 4.2 of practice direction 32 of the Civil Procedure Rules which states that an affidavit must "indicate" the source for any matters based on information or belief. (Note that there is an identical requirement for witness statements at paragraph 18.2 of the same practice direction.)

The Court of Appeal interpreted this requirement as meaning that, save in exceptional cases, the deponent must identify the source with sufficient certainty to enable the opponent to investigate the information or belief. The court therefore held that the individual who provided the information must be identified, together with the enquiry agent by which he or she was employed.