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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jofa Ltd & Anor v Benherst Finance Ltd & Anor  EWCA Civ 899 (24 May 2019)
Cite as:  1 All ER (Comm) 540,  1 All ER 849,  Costs LR 441,  EWCA Civ 899
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ON APPEAL FROM THE HIGH COURT OF JUSTICE (QUEEN'S BENCH DIVISION)
Her Honour Judge Melissa Clarke (sitting as a High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEGGATT
| (1) JOFA LIMITED
(2) JOSEPH FARAH
|- and -
|(1) BENHERST FINANCE LIMITED
(2) CHESTONE INDUSTRY HOLDING
Jonathan Cohen QC (instructed by Edmonds Marshall McMahon) for the Respondents
Hearing date: 16 May 2019
Crown Copyright ©
Lord Justice Leggatt:
"Please bear in mind that we are not represented and we fail to understand on what basis you expect us to disclose private information belonging to a third party."
The hearing of the investors' application
"The usual order would be for no order to be made for the costs of the applications. None is sought by the applicants against the third respondent, National Westminster Bank plc. Costs are sought by the applicants against [Jofa Limited and Mr Farah] and that is because of the history that I have gone through that there was extensive discussion and negotiation with [them] through their solicitors at the time they were represented, the failure of which resulted in the pre-action letter of 8 December 2017."
The "history" to which the judge referred in this passage had been described earlier in her judgment as follows:
"I have been shown a schedule setting out a number of instances of correspondence and contact between the solicitors acting for the applicants and the solicitors acting for [Jofa Limited and Mr Farah], in which the applicants sought voluntary disclosure of various documents by [Jofa Limited and Mr Farah]. That did not get anywhere, as far as the applicants were concerned. As a result, the applicants wrote their pre-action letter of 8 December 2017 …"
"if they had simply agreed to take a neutral position in advance then a hearing would still have been required but the overall costs (including counsel's fees) would be lower for the reasons that I have given. Those costs would not have been sought from [Jofa and Mr Farah]; they would have been costs for the applicant."
Did the judge adopt the wrong starting point?
"The court may however make a different order, having regard to all the circumstances, including –
(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and
(b) whether the parties to the application have complied with any relevant pre-action protocol."
How should the discretion be exercised?
"As Lord Reid himself put it in Norwich Pharmacal  AC 133, 175, the intermediary came under the duty without incurring personal liability. This is really only another way of saying that the court had an equitable jurisdiction to intervene. Lord Kilbrandon put the point very clearly in his own speech. Citing the South African decision in Colonial Government v Tatham (1902) 23 Natal LR 153, 158, he said that "the duty is said to lie rather on the court to make an order necessary to the administration of justice than on the respondent to satisfy some right existing in the plaintiff":  AC 133, 205."
"If the respondents have any doubts in any future case about the propriety of making disclosures they are well entitled to require the matter to be submitted to the court at the expense of the person seeking the disclosure."
Lord Cross expressed a similar opinion, stating (at 199) that:
"… in any case in which there was the least doubt as to whether disclosure should be made the person to whom the request was made would be fully justified in saying that he would only make it under an order of the court. Then the court would have to decide whether in all the circumstances it was right to make an order. … The full costs of the application and any expense incurred in providing the information would have to be borne by the applicant."
"(a) the party required to make the disclosure had a genuine doubt that the person seeking the disclosure was entitled to it; (b) the party was under an appropriate legal obligation not to reveal the information, or where the legal position was not clear, or the party had a reasonable doubt as to the obligations; or (c) the party could be subject to proceedings if disclosure was voluntary; or (d) the party would or might suffer damage by voluntarily giving the disclosure; or (e) the disclosure would or might infringe a legitimate interest of another."
Contrary to a submission made by Mr Cohen, it is clear that the Court of Appeal was not seeking to limit the circumstances in which the normal order should be made to the cases mentioned in this list.
"I think that the Rules implicitly recognise that it will not usually be unreasonable for [that person] to require the applicant to satisfy the court that he ought to be granted the relief which he seeks. The reason for that (if it be necessary to find one) lies, I think, in a recognition that a private person who is not a party to existing litigation which brings with it an obligation of disclosure is entitled to maintain the privacy of his papers unless sufficient grounds can be shown for overriding it and that it is for the person seeking to invade that privacy to justify doing so."
Postscript on costs
Sir Terence Etherton MR: