Key Facts
- •Appeal against refusal of non-party disclosure application under CPR Part 31.17.
- •Underlying claim arises from a road traffic accident involving 'Google-spoofing'.
- •Claimant (Mr. Parker) engaged a credit hire company (Spectra) after Googling his insurer's name.
- •Defendant (Skyfire) disputes credit hire charges, suspecting misrepresentation by Spectra.
- •Skyfire seeks call recordings between Mr. Parker and Spectra to support its misrepresentation claim.
- •Recorder refused disclosure, finding it wouldn't serve a useful purpose based on *Irving v Morgan Sindall plc*.
- •Skyfire appeals, arguing Recorder misinterpreted *Irving v Morgan Sindall plc* and his decision was perverse.
Legal Principles
Non-party disclosure is an exception, not the rule.
Rowe v Fryers, [2003] EWCA Civ. 655 at [10]
CPR Part 31.17(3) sets out threshold conditions for non-party disclosure: (a) likelihood of supporting applicant's case or adversely affecting another party's case; (b) necessity for fair disposal or cost saving.
CPR Part 31.17
'Likely' in CPR Part 31.17 connotes a higher probability than 'real prospect' but less than a balance of probabilities.
Three Rivers District Council v HM Treasury, [2002] EWCA Civ. 118 at [33]
A contract is voidable, not automatically unenforceable, for misrepresentation. Avoidance requires a step by the innocent party and restitution.
Various case law discussed in sections 32-33
A contingent liability constitutes a loss for which a claimant can recover.
Irving v Morgan Sindall plc, [2018] EWHC 1147 (QB); Giles v Thompson, [1994] 1AC 142; Harlow & Jones Ltd v Panex (International) Ltd, [1967] 2 Lloyd’s Rep. 509
Affirmation of a contract can be by conduct, not just express words.
Chitty on Contracts, (35th ed.) para. 10-148
A fully performed contract for services cannot be rescinded unless restitution is possible.
Chitty on Contracts, (35th ed.) paragraphs 10-139 to 10-140
It is unnecessary for a contracting party to understand the true nature of the contract to be bound by it.
Burdis v Livsey, [2007] EWCA Civ 510
Outcomes
Appeal dismissed.
The court found the Recorder's decision was not wrong in law or perverse. The threshold conditions for non-party disclosure under CPR Part 31.17 were not met because even if misrepresentation were proven, restitution was not possible, and Mr. Parker had effectively affirmed the contract. Delay in bringing the application was also a factor, although not independently sufficient to dismiss the appeal.