How to obtain early disclosure
The Civil Procedure Rules have a specific rule for this purpose, CPR 31.16, and this is the rule we will look at in detail below, but there are other ways in which someone wishing to make a claim can obtain information from the potential defendant.
Some disclosure may be given voluntarily during the pre-action protocol process. Most pre-action protocols require the potential parties to share key documents so that they can understand each other’s position and try to settle the issues without proceedings. Some go a little further – for example, the Professional Negligence Pre-action Protocol envisages the claimant including reasonable requests for relevant documents held by the professional in its letter of claim.
A potential claimant may also try to obtain information by making a subject access request. Jeremy Corbyn made an unsuccessful pre-action disclosure application in support of his claim that the Labour Party’s decision to suspend him from the Party Whip was unlawful (Corbyn v Evans). He had already made subject access requests to the Opposition Chief Whip and the Labour Party but failed to unearth anything helpful.
The court’s jurisdiction under CPR 31.16
The court can only exercise its discretion to make an order if the applicant can provide a positive answer to the following questions:
- Is the respondent likely to be party to subsequent proceedings?
- Is the applicant also likely to be party to those proceedings?
- Would the respondent’s duty to give standard disclosure (assuming it applied) extend to the documents in question?
- Is the disclosure desirable in order either to:
- dispose fairly of the anticipated proceedings
- assist the dispute to be resolved without proceedings, or
- save costs?
This test is described as a low bar in the case law: most applications are rejected as a matter of discretion.
Some other jurisdictional issues
Before considering the factors that affect the exercise of discretion under CPR 31.16, it’s worth mentioning some technical points concerning the interplay between CPR 31 and the disclosure regime for the Business & Property Courts found in PD 57AD.
CPR 31.16 is incorporated into PD 57AD but it is an awkward combination because the test under CPR 31.16 refers to standard disclosure which is not an outcome that can be ordered under PD 57AD.
In contrast, CPR 31.12, which enables a party to apply for specific disclosure, is not incorporated into PD 57AD. You cannot make an application under CPR 31.16 if you have already issued proceedings (Hart v Royal Borough of Kensington & Chelsea). A claimant that finds themselves facing a potential limitation defence, and so issues proceedings before going through the pre-action protocol process, will only be able to make an application for early specific disclosure.
In Balfour Beatty Regional Construction Ltd v Broadway Malyan Ltd, it was accepted that a judge in the Business & Property Courts could exercise their general case management powers in CPR 3.1(2)(m) in this situation, but an order for early specific disclosure or pre-action disclosure is highly unlikely to be made in a commercial case (see Carillion plc (in liquidation) v KPMG LLP).
The court’s discretion under CPR 31.16
Assuming that you can satisfy the jurisdictional test above, you have to persuade the judge to exercise their discretion in your favour. This is really a case management decision and the court will consider whether making an order will further the overriding objective in CPR 1.1 of enabling the court to deal with cases justly and at proportionate cost.
The relevant factors are wide-ranging and every case will turn on its own facts. Having said that, the following points come through loud and clear in the case law, so it is worth addressing them before making an application, or indeed resisting one.
Factors for the applicant to consider
- Have you complied with the relevant Pre-Action Protocol? In Carillion, the applicant had failed to comply with the Professional Negligence Pre-action Protocol by issuing a number of partial letters of claim and making excessive requests for documents. This did not assist their application.
- Have you enough information to be able to draft a letter before action so as to show the relevance of the documents sought to the issues? You need to be able to satisfy the test for standard disclosure and to rebut any suggestion that you are fishing for evidence to support a claim (Willow Sports Ltd v SportsLocker24.com Ltd).
- Have you got enough information to draft particulars of claim? This is a fine line. You need to have enough evidence to outline your claim, while not having so much as to enable the respondent to say that you can plead your case without further disclosure (see Carillion and Wang v Otaibi).
- Could you get access to the documents from another source? This was a factor against making the order in Wang, combined with the fact that they already had access to a significant number of documents.
- Can you demonstrate that the disclosure is likely to save costs? Can you show that the documents in question could enable you to dispose of the claim by mediation or negotiation? Could it reduce costs by narrowing the issues? This might be relevant if it would it enable you to avoid the cost of amending the particulars of claim in due course. However, in a high value and complex case, amendments may be inevitable (Carillion).
- Is your request well-defined, limited in scope and easy to comply with? If it is, your application has a much better chance of succeeding. See ECU Group Plc v HSBC Bank Plc (discussed here) for an example of focussed and costed pre-action disclosure ordered in a commercial case.
- Are you alleging fraud or dishonesty on the part of the respondent? Your application will be much stronger if you have evidence of dishonesty or fraudulent conduct which only early disclosure could properly reveal and which might otherwise escape detection, this strengthens. Brownlie v Prime Construction Consultants (extempore TCC judgment 27 October 2022) is a good example. The applicant homeowner was able to make out a potential claim for fraudulent misrepresentation concerning the respondent’s compliance certificate for a seriously defective loft conversion.
Some tips for the respondent
- Make sure your own house is in order. Have you complied with your pre-action protocol disclosure duties? Have you refused to mediate without giving adequate justification?
- Don’t refuse without good reason. Could you easily provide the documents in question? An unreasonable refusal could lead the court to award costs against you, displacing the usual rule that the applicant pays the costs of the pre-action disclosure exercise.
- Asymmetry of information. If you have the majority of the relevant documents, be careful not to overplay your hand. This asymmetry was present in Brownlie v Prime Construction Consultants where the respondent building inspection company had all the relevant material.
- Can you accuse the applicant of fishing? The courts will not facilitate a fishing exercise where the applicant is casting about for material in order to work out how to put its case. This may be a good line to take if there is no letter of claim or where the applicant doesn’t know which cause of action to pursue (Willow Sports).
- Have you got a strong defence to the putative claim? For example, if you can prove that the applicant’s case on limitation is hopeless, that would be a good reason to dismiss the application. A potential limitation defence will not be enough in itself (ECU Group). The court will not be interested in exploring the merits of the claim unless it is self-evidently ill-founded.
The only recent reported cases in which pre-action disclosure has been ordered involved a credible allegation of fraud or dishonesty. The first is Brownlie v Prime Construction Consultants discussed above. The other is Zenith Insurance Plc v LPS Solicitors Ltd where a second application for disclosure was refused after an order for pre-action disclosure had elicited almost 500 pages of documents. The claim concerned false identity documents used to make fraudulent personal injury claims.
The other factor that can result in an order for disclosure is asymmetry of information resulting in an unlevel playing field (the overriding objective requires the court to ensure that the parties are on an equal footing). This was crucial in The Bullring Limited Partnership v Laing O' Rourke Midlands Limited where, unusually, the claimant was ordered to give early specific disclosure because it was refusing to share its pool of knowledge with the defendant. The documents were easy to identify and should have been disclosed years earlier. Asymmetry of this kind was stated to be a factor in Brownlie and will often be present in cases where an order for pre-action disclosure is made.