A non-party, or third party, disclosure order is a court order that requires an individual who is not a party to the proceedings to do a particular thing. Typically, this is to provide documents and/or disclosure information on a certain subject to the court. In family proceedings, it is most often used to obtain financial information. Read on to see how they are used.
A non-party, or third party, disclosure order is a court order that requires an individual who is not a party to the proceedings to do a particular thing. Typically, this is to provide documents and/or disclosure information on a certain subject to the court. In family proceedings, it is most often used to obtain financial information. Read on to see how they are used.
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Who is considered a third party (non party)?
Some individuals believe they can beat the system by transferring assets out of their name and into another third party. They incorrectly think this places them out of reach of the court and that the assets are “hidden”. A third party disclosure order is made when the court is informed that another person or organisation has information pertinent to the parties case.
A third party may be:
- A family friend or member
- A financial organisation such as a bank or building society
- Solicitors
- Accountants
- Government departments/organisations
- Other relevant organisation or individual
Before making an application to the court, you should consider writing to the third party first and ask them if they would be prepared to voluntarily disclose the information. This avoids the cost of proceedings and may resolve the matter quicker. If they refuse, or don’t give you the information asked for, you can use this to justify the court application.
When can the court order a third party to disclose certain information?
You will need to explain in your application statement why the court should force the named third party to provide disclosure and how it is relevant to the proceedings. Clear evidence must be set out, and caution taken about making applications based on supposition or a presumption as the court is unlikely to believe such allegations without substantive evidence.
Under 21.2(3) of the Family Procedure Rules 2010 (FPR) the court can order disclosure “only where it is necessary in order to dispose fairly of the proceedings or to save costs.” Often, the third party organisation is given permission by the court to apply to vary or discharge the order. And even if this option isn’t stated in the disclosure order, under rule 21.3 FPR, the organisation can apply for an order permitting them to withhold disclosure on the grounds that it would harm the public interest. However, this is often a last chance saloon argument.
You will also have to show the court that the third party has an interest in the asset, and it is connected to you and/or your ex.
What happens when the third party receives the disclosure order?
The order will be sent to the third party in question, and your solicitor should confirm they know what they need to do to comply with its terms. They will be given deadlines for providing the requested information and if these are not adhered to, you can take them back to court to enforce the order. If the result of the disclosure order is that there are relevant assets, then you can apply to join the third party to the proceedings.
When can a third party be joined to the proceedings?
The test that the court must apply when considering whether to join a third party is set out in rule 9.26B(1), where:
- It is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
- There is an issue involving the third party and the existing party which is connected to the matters in dispute, and it is desirable to add the third party to enable the court to resolve the issue.
Joining a third party will ultimately increase costs and can also cause an additional delay in the resolution of the proceedings.
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