Written by Michael Coyle on 27 November 2012« Return to Reading Room
CPR 31.16(3) and section 33 of the Senior Courts Act 1981 (High Court) and section 52 of the County Courts Act 1984 allows a party to apply for pre-action disclosure.
Pre-action disclosure is usually sought if a party believes insufficient information has been provided in the letter before claim or letter of response to allow them understand.
Prior to an application the applicant should write to the other side and ask for documents then apply to the court using application notice N244 with a witness statement.
Under CPR 31.16(3)(a) + (d) the court may make an order for pre-action disclosure where the applicant and respondent are likely to be parties to subsequent proceedings.
In Black v Sumitomo Corpn  - It was held that the court needed to be satisfied that document which is being sought is within the control of the intended defendant who is likely to become a party to the proceedings.
What does likely to become a party to proceedings mean?
In PhD Modular Access Services Limited v Seele GmbH  EWHC 2210 (TCC) For pre-action disclosure to be ordered under CPR 31.16 it was not enough that court proceedings were contemplated by the parties, the proceedings had to be anticipated. A real prospect, if not a certainty or likelihood.
Pre-action disclosure is desirable (necessary or useful) in order to (i) dispose fairly of anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs (CPR31.16(3)(d)).
The court may make an order for pre-action disclosure under CPR 31.16(3).
When making submissions to the court you will need to show why the documents will be useful? How will it/they help the Court? What will it show?
In Kneale v Barclay's Bank 2010 it was held you need to show claim is properly arguable and not merely a punt.
A party can also invite the court to exercise its discretion to order disclosure since the document should have been disclosed under the Practice Direction for Pre-action conduct.
The court will also need to consider number of documents and the nature of claim before ordering pre-action disclosure.
Court will not order pre-action disclosure where it will be oppressive e.g. where the documents will open a line of enquiry rather than support the claim.
Given the nature of the order an application for pre-action standard disclosure would fail as something more specific is required.
Under CPR 31.16(5) - The disclosure Order will usually require the Respondent to explain where the document/s which was/were in his control went.
Under CPR48.1(2) - Most likely the applicant will have to pay costs.
General rule as to costs is that the Respondent will be awarded costs of application and of complying with it. Costs will be decided by summary assessment after the order is complied with.
Under CPR 48.1(3) - the court can make different orders as to costs (see article on 'general costs').
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