Third party disclosure rules in Small Claims Track [CPR 31.17]

**R0b** · 2nd January 2019, 14:03:PM

Hello

It seems to me you are overthinking things. Standard disclosure under CPR 31 enables parties to inspect documents that are in the possession of the other party, or if they aren't but previously were, then the party needs to explain why the document is no longer in their possession.

Inspection and disclosure under the above rule is not the same as relying on evidence obtained by you as part of your claim or defence nor are you limited to relying on your own evidence as if that were the case, a lot of claims would probably get dismissed from the start. You are not prevented from using third party documents or other evidence so long as you have obtained it ethically and/or lawfully.

All you need to do in your witness statement is reference the email with some basic information e.g. date and time, email from X to Y, and you will need to disclose it to the other side too along with your witness statement and other evidence 14 days before the hearing date. You will then be able to rely on that email as part of your argument at the hearing though if it is damaging to the defendant, then he or she may wish to settle the claim if it suggests that they are lying.

In a nutshell, make reference to it in your witness statement and that's all you need to do, unless of course the defendant challenges the authenticity of the email in which case you may need extra proof, such as a witness statement from the person who disclosed the email to you and/or you may wish to take a print out of the email headers (you can use Microsoft's header analyzer if you click here) as further evidence but that might just be overkill for a small debt claim.

**Amethyst** · 2nd January 2019, 14:07:PM

I'll leave R0b to answer properly, but I think you may be overthinking this. You have opportunity before the hearing to exchange witness statements and evidence/documents so you can include the email in your Witness Statement.
How did you obtain the document from the Third Party? He may need to write an affadavit confirming the document is true, but it depends on what the case is and if the Defendant is likely to dispute that it is
Personally, if this email sent by the Defendant to the third party destroys their defence, I'd write to the Claimant now disclosing the email and inviting them to withdraw to save further costs.

Oh bumheads... well as per R0b xxx

**alexjones_26** · 2nd January 2019, 14:40:PM

Hi R0b and Amethyst

Thanks for your responses, much appreciated!

You both have mentioned writing this into a witness statement, however I am unsure of the witness statement you are referring to.

The last court order made no reference to a direction for the exchange of witness statements. I am not expecting a witness statement from the defendant, nor is he expecting one from me, as far as I know. Is it permitted to just submit a witness statement out of nowhere, without a direction specifically asking for me to do so?

If I can write a witness statement mentioning the email, and raising the matter in this way is sufficient for me to be able to rely on it in court, I will certainly do that. If I am not in a position to write a witness statement (because it wasn't ordered), what is the best process moving forward to ensure I can rely on the email?

R0b - you also mentioned 'you are not prevented from using third party documents or other evidence so long as you have obtained it ethically and/or lawfully'. My next question therefore is - did I obtain it ethically and / or lawfully?

The third party simply told me about the existence of the email, and I requested that he forwarded it for me as it would assist in my case against the Defendant. So there is nothing illegal about how I obtained it in the literal sense (i.e. not through theft, or breaking and entering!), but there is still a legal issue of possessing confidential documentation that is not legally mine?

Amethyst - I would certainly like to settle before court if possible, however a counterclaim exists against me (something I'm confident also won't succeed!). Would settling the claim have any effect at all on the hearing when the counterclaim is still 'live'? I suppose I would have to try and convince him there is no merit in his counterclaim, which I have already tried before!

Just to summarise another aspect for my better understanding - is it both of your beliefs that I do NOT need to make any application (N244) to the court to request permission to use the document?

Many thanks for your help so far

Best,
Alex

**Amethyst** · 2nd January 2019, 15:02:PM

The hearing date has been set for February ? have you read everything that came with the letter giving that hearing date ? Should tell you by when you need to pay the hearing fee and also when to exchange witness statements / documents - usually on second or third page attached to the hearing date letter.

On the email, if you bring it up with the other side now you'll be able to prepare for if they challenge it - potentially have the third party write an affidavit confirming that they received it from the other side and that it is genuine, and that they disclosed it to you etc

It might help to have an idea of the case here too. If individuals / companies etc in case theirs any data protection issues ( ie if the third party is a company and the defendant an individual would disclosing the email get third party into problems with data protection rules )

Have you defended the counterclaim ?

**R0b** · 2nd January 2019, 15:09:PM

Standard directions dictate that in every claim, there must be an exchange of witness statements 14 days prior to the hearing. The witness statement sets out the facts of the claim and your evidence that you intend to rely on when you turn up to court.

Has there been an exchange of witness statements before? It seems odd that the court would not make the standard direction that witness statements are to be exchanged. You would usually expect to see on the directions wording along the lines of All parties must file and serve on every other party a copy of all documents which they intend to use at the trial at least 14 days before the final court hearing. I would double check the directions carefully, including on the other side of the page in case you missed it and if it's definitely not there, I would contact the court for them to double check.

In any event, it would be good practice to file and serve a witness statement together with your evidence as that is what you would ordinarily expect though I appreciate that in your situation it may not be the case.

About your point of obtaining it ethically or lawfully, what I mean by that is you should generally have obtained your evidence with clean hands. In other words, you didn't take it without permission or you were intimidating someone or you hacked into the defendant's computer to get the evidence you need. Judges tend to take a dim view of that.

If the document was disclosed to you via a third party by simply requesting it, then that should be fine although what makes you think the document is confidential? Usual rules of confidentiality don't tend to be engaged where the information is obtained lawfully and that you were not bound by confidentiality at the time of receipt.

If you want to write to the defendant and aim to settle that's up to you. It's a game of tactics and it will be seen as an attempt on your party to keep with the spirit of the overriding objective under CPR 1.1. One way of doing this is to send two letters; the first letter is an open letter setting out your discoveries and suggesting that on the basis of your evidence you believe that there is no prospect of the defendant winning their case or their counterclaim and so they should withdraw it and consider settling the matter. The second letter will be your without prejudice letter which will set out the terms of your offer. It will also need to be very specific to say that the offer is in full and final settlement of all claims and counterclaims of each of the parties to avoid having to defend the counterclaim made by the defendant.

I really don't think you need permission from the court unless there is something you aren't telling us.

**alexjones_26** · 2nd January 2019, 15:56:PM

Ahhh yes, just checked and it does indeed say - right there in plain English - that witness statements are part of the documents to be sent to the other party haha. I should have re-checked before writing on here, sorry about that!

Ok, so the third party email document is something that can be addressed in my witness statement - that's now fully understood on my part.

Amethyst - is the affidavit something that I can draft for the third party and they sign and send back to me? I am just mindful that I would like to keep this as minimal effort for the third party as possible, given it is not their battle.

Yes, I have also entered a defence for the counterclaim! The facts of the counterclaim are quite different though, so I don't believe winning the claim will automatically have an impact on the counterclaim.

In terms of the parties, the Defendant is my former employer, a ltd company. I am an ex-worker, suing in an individual capacity, for unpaid commission.

The third party is an ex-client of theirs (an individual).

The email from the company explains what the company's accounting policy for commission payments are to the ex-client. What the Defendant's email says is a complete contradiction to the version they have set out in their defence. The email impeaches his own case and completely affirms my statement of case in my claim.

R0b, given the information on parties I just mentioned above, I would say that I have definitely obtained the information with clean hands. As I say, I requested it as an individual from an individual, and the individual disclosed it. No funny business, nothing I'm not already telling you etc

The reason I ask about confidentiality is that the email is between a company and it's client, and relates to accounts.

In summary, from what you both have said, my next moves are as follows :

1) Send Defendant an "open letter setting out your discoveries and suggesting that on the basis of your evidence you believe that there is no prospect of the defendant winning their case or their counterclaim and so they should withdraw it and consider settling the matter"

2) Send D a "without prejudice offer, which will set out the terms of your offer. It will also need to be very specific to say that the offer is in full and final settlement of all claims and counterclaims of each of the parties to avoid having to defend the counterclaim made by the defendant"

If D chooses not to settle, or disagrees with the use of the email as evidence, then:

3) I write a witness statement setting out the basis of my claim, including the email from the third party as an enclosure. I can file and serve this any time up to 14 days before.

4) I obtain an affidavit from the third party, verifying the truth of the email document, ready for use in the hearing.

I either write this on his behalf, or he writes this himself? Any tips on form of an affidavit for a third party (do they write that they are a non-party / third party etc) would be appreciated

5) I file and serve on D all evidence which I intend to rely upon more than 14+ days before trial. This will include all documents, witness statements, email correspondence, invoices, etc.

6) Hearing takes place.

Is my understanding correct?

Thanks!

Alex

**R0b** · 2nd January 2019, 17:04:PM

So just to get my head around all of this, the email you received from your former employer's ex-client was a conversation about how and when commission is paid? If there is no specific client account information other than the ex-client then I don't think the issue is with the client information because the ex-client has consented to give that information up by disclosing the email. The real question is whether the disclosure of their policy on when commission is paid is considered to be confidential or not. As a general rule of thumb, in order to establish a common law duty of confidentiality the information disclosed must:

1. have some value attached to it, though not necessarily commercial value.
2. In the eyes of a reasonable person in the position you are currently in, would they regard an employer's policy on paying commission as confidential giving the circumstances.
3. be abused or misused and if yes, how so?

On the face of it, a reasonable person might not regard a company's policy on paying commission as being confidential since it is probably possible to obtain that information rather easily. Other factors could be whether you were told the email was confidential, or if the email had any statement saying the policy was considered to be confidential (though that doesn't automatically make it confidential). Even if it were to be treated as confidential, you could argue that in the context of litigation, the email should be admissible because by not admitting the email, it would prejudice your claim as it helps to show that the defence is clearly false. As a less drastic measure, you could say that the court could make an order that the email should not be disclosed to any third party who requests copies of documents on the court file (as these become public record) so as to maintain confidentiality.

Only a judge could really determine if the email was confidential so I am not able to give you a clear cut answer on that. The company would also have to apply for an injunction not to use the document and even if they did, you could still look to obtain a statement from the ex-client which would help to assist you.

An affidavit is set out in the same way as a witness statement although there's a couple of differences. It would be easier for you to google it than to explain.

As for your summary, that sounds about right but as I say, you need to do what's best for you. It may be in your best interests not to send an open letter or make any reference to the email and instead slip it into your evidence pack with your witness statement and if your employer wants to argue confidentiality, then argue it on the day. Otherwise if they want to oppose the fact you have it in your possession they could make an application for an injunction and that could disrupt the timetabling of the court.

If it were me, I'd probably take a chance on keeping quiet and letting your employer raise the issue, rather than pointing it out for them as there is less time for them to digest and may be focused on preparing for court. Sometimes, what you may perceive to be as a smoking gun could in fact backfire.

**Amethyst** · 2nd January 2019, 17:23:PM

Regarding the email - it may be ( argued ) that commission terms would be individually negotiated and those told to a client of the company not necessarily be evidential of those that applied to your contract.

Are the commission terms not detailed in your terms of employment ? Do you have a copy of your contract ?

**alexjones_26** · 2nd January 2019, 18:49:PM

"So just to get my head around all of this, the email you received from your former employer's ex-client was a conversation about how and when commission is paid?" Yes - that's correct.

I'll be more open about it all for you both below (up until now I've tried to be somewhat vague with any case information that could lead back to me, but I think that's unlikely anyway).

I was a music booking agent who worked for a booking agency (the Defendant). I earned booking fees by booking artists at club shows, festivals etc. The agency would receive that money on the behalf of the artist and myself, and then pay out to us afterwards in monthly statements. To earn the commission, the agent must (1) confirm a show, (2) contract the show and (3) invoice for the show (this is what I have plead in my statement of case). When I left the agency, I was not paid booking fees for 10 shows that I had fulfilled (1), (2) and (3) for, and the fees from these shows are the outstanding debts I am claiming for.

In the Defendant's defence, he says that I must do (1) - (3) above, AND ALSO alleges a total of 7 other administrative tasks before the commission was payable! Therefore he (the Director) claims he doesn't have to pay me a penny.

It's completely untrue, and is unprecedented in the live bookings industry. It's not standard custom to do it this way, and the additional tasks were never communicated as requirements before commission was payable, so the Defendant has nothing to support his version of duties, whereas I have a few things that should prove my way is 'the norm'.

When the ex-client (an artist represented by the agency) disengaged the company, the company sent an email containing the ex-client's final payment statement. Within the email, the company explained that they had withheld certain money due to a show which they had fulfilled (1), (2) and (3), and goes on to confirm that they did not do any of the other work at all. The explanation in the email therefore coincides entirely with my version of duties (1) - (3), and goes against what the company set down in their defence... It's basically just a very casual admission that what I have stated is true!

So as you can see, it's not really an actual "written policy" per se in the email. It's just a casual statement said by the way, that will likely cause the company 'accounting policy' plead in their defence to be disproven.

Another concern you've just raised in my mind with your line of enquiry, is that there is a small print disclaimer at the bottom of the email reading as follows:

"The information contained in this email and it's attachments is confidential and may be the subject of legal, professional or other privilege. It is intended only for the named addressees and may not be disclosed to anyone else without consent from [COMPANY NAME]. If you are not the named addressee you must not use, disclose, distribute, copy, print or rely on the contents of this email and should destroy it immediately. If you require further information, please contact the originator of this message."

It clearly says it should not be disclosed to third parties (me) without the company's consent, and also that I should not use or rely on the contents of it. Just because the Defendant says so though, doesn't mean it's inadmissible at court, right? Do you think it's still ok to use in the witness statement? Or, given the disclaimer, do I need a new plan of attack to get the court's permission?

@ Amethyst - I asked for an employment contract many times at the start of my work there, but never received one unfortunately. Think I have an inkling as to why now!

Regarding individual negotiations, in my line of work the duties of a booking agent / the agency are not usually negotiated. It would be commonplace to negotiate on terms such as what percentage the booking fee is, as an example for you, but not what duties.

I do understand what you are saying though about his case not necessarily being evidentiary of my case, but I feel, in the particular facts of this case, the judge will see that the Defendant has simply contrived an alternative set of facts to try to extricate himself of his responsibility to pay me inline with industry custom.

I feel I can't decide whether to attempt settling again or not until I fully know my position with using the email. I'm just fearful of the Defendant being allowed to contest the use of the email because of that stupid disclaimer! What are your guys' thoughts?

Thanks for your ongoing help!!

Best
Alex

**alexjones_26** · 2nd January 2019, 20:06:PM

A bit of research has shown up that there is no legal authority in the UK on the effectiveness of confidentiality notices or disclaimers in email, going on to say "If your organisation decides that it is worth including such a notice, just be aware that it will be in a court's discretion to ignore it".

https://www.out-law.com/page-5536

Albeit it's dated 2010, but I have not found anything else to the contrary after a bit of research.

So perhaps I can continue to include in the witness statement and leave it to the Defendant to raise it as an issue?

If needed, I'm sure the court's duty to conduct the trial fairly, expeditiously, justly and where possible save costs would override a meek confidentiality notice at the bottom of an email which doesn't actually contain very sensitive information but is pertinent to the case? And as you said R0b, not using the email could certainly prejudice my case.

What do you think?

Thanks

**CLL1** · 2nd January 2019, 23:04:PM

I would think it's fine to include. Include references in your w/s, and exhibit it to your witness statement. No need for an affidavit.

**alexjones_26** · 3rd January 2019, 19:53:PM

Ok thanks CLL1

R0b and Amethyst - what are your thoughts on the above?

Cheers,
Alex

**R0b** · 3rd January 2019, 20:17:PM

Nothing more I can add than what's already been said.

**alexjones_26** · 3rd January 2019, 21:17:PM

You don't think that the confidentiality notice in his email is a cause for concern for using it in proceedings?

That's good news if so

Third party disclosure rules in Small Claims Track [CPR 31.17]