Pre-action disclosure applications: a risky business?

The courts are becoming increasingly reluctant to order pre–action disclosure and unsuccessful applicants are often left facing a costs bill as a result. We explain how the courts deal with applications for pre-action disclosure as well as highlighting some other avenues available to litigants seeking early disclosure.

What is a pre-action disclosure application?

Under CPR 31.16, a potential party (applicant) may apply to court before proceedings have been issued to obtain disclosure of documents from another potential party (respondent).  This is known as an application for pre-action disclosure (PAD). Although PAD applications are more commonly made by claimants, they can also be made by defendants to better understand the claimant’s case against them.

The court may only make an order for PAD where:

1. The applicant and respondent are likely to be party to proceedings;
2. The disclosure sought falls within the scope of CPR 31.6; and
3. An application for PAD is desirable in order to:
   1. dispose fairly of the anticipated proceedings;
   2. assist the dispute to be resolved without proceedings; or
   3. save costs.

By way of reminder, CPR 31.6 sets out the test for standard disclosure.  This requires a party to disclose any document on which they rely and any document which adversely affects their or another party’s case or supports another party’s case.

Two recent PAD applications

In Hunt v Caddick (Mill Harbour) Ltd, the applicant suspected that the respondent had received additional benefits at the time of a settlement agreement which it said would have triggered an "overage" payment. Acting on this suspicion, the applicant made an application for PAD. This application was refused on the basis that there was no sufficient evidential basis and the application therefore appeared to be a fishing expedition. In reaching this decision, Judge McCahill QC also considered that most of the documents sought were likely to be privileged and therefore would not be disclosed in any event.

In Kas No. 8 v Estera Trust the applicant had been in negotiations with the respondent to purchase a hotel from them. The applicant questioned whether the respondent had been in a position to sell, or intended to sell, and claimed that it had incurred significant wasted expenditure. The applicant sought PAD of some 18 months of correspondence. In an effort to secure the disclosure, the applicant offered to provide search terms and meet the cost of the disclosure exercise. Despite this, the court refused the application. Robin Knowles J concluded that the disclosure sought was speculative and onerous in circumstances where it was unnecessary: he said the statements of case could be amended at a later date.

The court’s approach

Although the test under CPR 31.16 appears straightforward, there is a discretionary element to it. The two recent cases above elucidate the court’s reluctance to make an order for PAD where there is an alternative route; PAD should therefore be viewed as a last resort. In addition, the courts will not entertain fishing expeditions and they expect PAD applications to be evidentially sound. It is worth noting that disclosure can be a costly and time consuming exercise. It is not surprising therefore that the courts do not grant PAD lightly where proceedings are not yet afoot.

Disclosure from a non-party

The first of the other disclosure tools to be aware of is the jurisdiction to obtain disclosure from a non-party. These applications are made under CPR 31.17 and are dealt with in a similar way to PAD applications. The court will make an order under CPR 31.17 where the disclosure sought is necessary in order to dispose fairly of the claim or to save costs. As with PAD applications, the courts are not hasty to make these orders and will look to the surrounding facts to determine whether it is necessary to make such an order.

The importance of the “necessity” element was illustrated recently by Mayor v Jackson (unreported) in which Mills & Reeve successfully defended an application for non-party disclosure. In this application, a patient sought disclosure of her full medical records from her GP surgery by way of a subject access request sent through her solicitors.  The surgery prepared a paper copy of the notes and left them at the surgery reception for her to collect. The patient’s solicitors insisted that the records should be sent electronically to them directly. When the GP surgery refused, the solicitors brought an application under CPR 31.17. Deputy District Judge Waring concluded, understandably, that the medical records had been made available by another means and therefore a disclosure order simply was not necessary.

Norwich Pharmacal Orders

A Norwich Pharmacal order (NPO) is another means of seeking disclosure from a non-party. However, unlike applications under CPR 31.17, a NPO can only be obtained against a respondent who is “involved or mixed up in the wrongdoing” but is not likely to be a party to the prospective proceedings. They are therefore commonly used against banks in a civil fraud context. See our Aha! Knowing Me, Knowing You - Norwich Pharmacal in civil fraud article.

Subject access requests

A subject access request (SAR) is a request from an individual for their personal data. Under Article 15 of the GDPR, a SAR does not have to be in any specific form so long as it is made in writing. It can also be made at any time.  A SAR can be a powerful weapon if used in a timely manner. An individual is entitled to request all their data. The recipient will then have to sift through the individual’s data, removing any data which they think may be covered by an exemption such as privilege. For this reason, they can be can be extremely time consuming and expensive for the recipient.  Click here for more information.

Need to find out more?

If you have any questions and need further information or advice, you can contact Eve Rodgers or any of our specialist lawyers in our litigation and arbitration team.