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At The Races

Published 5 junio 2017

Pre-action disclosure  – not an excuse for fishing expeditions

The scope of CPR r.31.16 and the question of whether an application for disclosure should be granted was considered by the High Court in its judgment in Attheraces Limited and Arena Leisure v Ladbrokes Betting and Gaming Limited, handed down on 6 March 2017.

Pre-action Disclosure applications have been made by some firms of solicitors with alarming frequency with, sometimes, one request for disclosure of documents leading to another request, with each request being supported by threats of applications.

Civil Procedure Rules r.31.16 provides that:

(3)       The court may make an order under this rule only where:

(a)       the respondent is likely to be a party to subsequent proceedings;
(b)       the applicant is also likely to be a party to those proceedings;
(c)        if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d)       disclosure before proceedings have started is desirable in order to:

(i)        dispose fairly of the anticipated proceedings;
(ii)       assist the dispute to be resolved without proceedings; or
(iii)      save costs.

In Attheraces, a number of the documents requested did not fall within the scope of standard disclosure and the Court found that the disclosure was not required for the applicant to commence proceedings or, if they were minded to, for the parties to engage in settlement discussions.  As a consequence, there was no real prospect of the application disposing of the anticipated proceedings, assisting the dispute to be resolved without proceedings or saving costs.  Mr Justice Marcus Smith dismissed the application, stating that it is …impossible to see how the disclosure can be needed to dispose fairly of the anticipated proceedings and I do not understand how there can be any real prospect that costs will be saved.

Whilst the appetite of Claimants' solicitors to pursue applications for disclosure in personal injury claims may have been reduced by the Court of Appeal's judgment in Sharp v Leeds City Council (Insurance Adviser Alert February 2017), when applications are made it is important for the respondent to consider with care the merits of each application and whether it satisfies the criteria in CPR 31.6 including the desirability test.

Authors

David Williams

David Williams

Leeds

+44 (0)113 251 4844

Peter Allchorne

Peter Allchorne

Bristol

+44 (0) 117 918 2275

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