Non-party disclosure ordered in support of enforcement

The High Court has found that the court has jurisdiction to order non-parties to disclose documents after, as well as before, judgment: North Shore Ventures Limited v Anstead Holdings Limited & ors [2011] EWHC 178 (Ch).

The claimant obtained judgment against two of the defendants for approximately US$50 million and, to assist enforcement, obtained an order for cross-examination of the defendants on their assets. The claimant asserted that the defendants had sought to conceal their assets behind various trusts, and obtained an order that the defendants produce certain trust documents. The defendants claimed not to have the documents in question. Their appeal against that order remains pending.

In the meantime, the claimant applied for an order that the wives of the two defendants disclose such of the documents as were within their control. The wives (unlike the defendants) remained discretionary beneficiaries of the trusts and therefore, it was argued, should be able to obtain the documents from the trustees or from their professional advisers. The application was resisted on the ground that the court's jurisdiction to order non-party disclosure applied only to proceedings before judgment. The court rejected this argument, finding that the power to order non-party disclosure did not cease at the date of judgment.

This judgment illustrates that non-party disclosure may be available to assist with enforcement. However, given that it is a matter of the court's discretion, each case will turn on its facts. The court may be more inclined to make such an order where, as here, the non-party is closely connected to the defendant.