Pre-action disclosure

by Practical Law Dispute Resolution

A Practice note considering the court's power to order pre-action disclosure under Civil Procedure Rule (CPR) 31.16. It explores the jurisdictional tests that an applicant must satisfy, as established in key case law such as Black v Sumitomo [2001] EWCA Civ 1819: namely, that the applicant and the respondent are likely to be parties to subsequent proceedings, if proceedings had started, the respondent's duty by way of standard disclosure (under CPR 31.6) would extend to the documents, or classes of documents sought, and pre-action disclosure is desirable in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings; or save costs. Even where the jurisdictional threshold is met, the court must then consider whether, as a matter of discretion, on all the facts, it is appropriate to make an order for pre-action disclosure. The note looks at the practical application of these principles in various contexts, including for cases in the Business and Property Courts (B&PCs) subject to Practice Direction (PD) 57AD ("Disclosure in the Business and Property Courts"), judicial review proceedings, and disputes subject to expert determination. It also outlines the procedural steps for making an application, addresses the costs position under CPR 46.1, and considers alternative routes for obtaining information before a claim is issued.