ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
Disclosure orders against third parties It is possible for the court to order disclosure against third parties. Under FPR 21.2(3), the court may make an order only where disclosure is necessary in order to dispose fairly of the pro - ceedings or to save costs. Under FPR 21.2(4), the order must: • specify the documents or the classes of documents that the respondent must dis - close; and • require the respondent, when making disclo - sure, to specify any of those documents: (a) that are no longer in the respondent’s control; or (b) in respect of which the respondent claims a right or duty to withhold inspection. Under FPR 21.3(1), a person may apply – with - out notice – for an order permitting that person to withhold disclosure of a document on the ground that disclosure would damage the pub - lic interest. There is a distinction between orders for disclo - sure and orders for inspection. A party discloses a document by providing it, whereas inspection occurs when a disclosed document is inspected. There are alternative procedures that the court may use when third parties are central to a pro - ceeding, including: • joining individuals to the proceedings (FPR 9.26B) – this is done where it is desirable in order for the court to resolve the issue in dispute; and • an order requiring the production of docu - ments.
Trusts The court recognises trusts. The court has a sophisticated set of tools to deal with them. The court will first establish whether the trust is a “resource” available to either party. It is a resource if that party can ask the trustees for financial support and it is, on the balance of probabilities, likely to be provided. Once this hurdle has been passed, the court can make orders against the parties in the proceedings on the basis that the trustees will make a suitable distribution. The court also has vast powers that it can use against the trust itself – namely, the court can: • in certain limited circumstances, set the trust aside for being a sham; or • vary its terms on the basis that the trust is a prenuptial or postnuptial settlement. 2.4 Spousal Maintenance The court’s attitude to spousal maintenance is that awards for spousal maintenance should be made with reference to needs. The exception is in the most extreme cases where it can be said that the sharing or compensation principle applies, per SS v NS (2014) EWHC 4183 (Fam). Traditionally, the court has been relatively gen - erous when assessing those needs compared to many other jurisdictions. However, in recent years, the length of time such orders should con - tinue has come under scrutiny and has become shorter – with an expectation that the economi - cally weaker party should be able to become financially independent sooner rather than later. A party can apply for maintenance pending suit under Section 22 of the MCA 1973, before the final outcome of the division of finances on
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