14th Mar 2012
The applicant (X) applied for specific disclosure against a non-party (G) in committal proceedings against the respondent (K).
X had successfully claimed against the defendant (Y) for breach of fiduciary duty in the affairs of a company and had been awarded a substantial sum. X obtained a freezing order over Y's assets in support of enforcement of the judgment. X then discovered that what he regarded as one of Y's key assets, namely a shareholding in another company, had been transferred to Y's wife (K). The share transfer form was dated November 21, nearly five months before the judgment date, but X believed that the transfer had taken place much closer to the judgment date in order to avoid enforcement and that the form had been backdated. X began proceedings against Y and K under the Insolvency Act 1986 s.423 to set aside the transfer as a transaction defrauding creditors. X applied for K's committal for contempt of court on the basis that she had made two statements that had been verified by statements of truth, but which were untrue; that the transfer was dated November 21, and that she had attended G's office on November 21 to sign the form. X sought a disclosure order against G, and G agreed to produce his file and made a statement referring to an electronic copy of the share transfer form. The committal hearing was adjourned to allow X to obtain expert evidence. The instant application was being heard two days before the new date set for the committal hearing. X sought disclosure of the metadata relating to the electronic copy of the share transfer form, plus further documents including any retainer letter and correspondence between G and K, and G's diaries and time sheets showing records of attendance on Y and K.
A committal application alleging a false statement of truth was alleging a public wrong, not a private wrong, Malgar Ltd v RE Leach (Engineering) Ltd  C.P. Rep. 39 applied. There should be rigorous control of the conduct of such proceedings brought in the public interest. If disclosure were ordered, responding to the request for metadata would involve G in little effort, but responding to the other requests would be burdensome. It would require G to attend to the interests of X above his other clients. The likelihood of a further adjournment of the trial was high. If disclosure were not ordered, the committal application would proceed on the same evidence that would have been before the judge at the original listed hearing, but supplemented by expert evidence. If the application, when brought, was sustainable it would continue to be sustainable. The one thing lacking would be the metadata for the electronic copy of the share transfer form, which X had known about for several months. The consequences of ordering disclosure were more serious than the consequences of not ordering disclosure. The possibility of an adjournment of the hearing was a strong factor, as the committal hearing had already been adjourned once. It was not right that proceedings in the public interest should be conducted in such a way as to produce material at the last minute where a respondent was facing the threat of imprisonment.
It was not appropriate to grant a late application for non-party disclosure in proceedings for committal for contempt based on an allegation of false statements of truth in court proceedings. It was not right that proceedings in the public interest should be conducted in such a way as to produce material at the last minute where a respondent was facing the threat of imprisonment.