Revealing information

The Court of Appeal decision in Black v Sumitomo Corporation [2002] 1 WLR 1562 has been followed by a number of cases providing further guidance on applications for pre-action disclosure under Part 31.16; most recently in Hands v Morrison Construction Services Ltd [2006] EWHC 2018 (Ch) and Laurence v Commissioner of Police of the Metropolis [2006] EWCA Civ 425. In the former, a reduced order was made and, in the latter, no order at all.

Defendant insurers in personal injury cases frequently do not respond to letters of claim within the time limit or simply deny liability without disclosing any, or insufficient, documentation. Claimant solicitors, understandably reluctant to issue proceedings without some or adequate response, are increasingly making use of pre-action disclosure applications

While Hands and much of the recent case law on pre-action disclosure has arisen from commercial disputes, they, and earlier commercial authorities, can be utilised to provide personal injury practitioners with useful guidance which will maximise the chances of a successful application.

Applying the rule

The availability of pre-action disclosure long predates the civil procedure rules (CPR). For example, in Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185, the applicant, injured in a truck at work, sought disclosure of the truck's maintenance records to establish whether the braking system was defective. It was made clear to the respondent that, should the records support the complaint that the braking system was defective, the applicant would issue proceedings; otherwise the matter would be dropped. Although initially unsuccessful, the application before the Court of Appeal was allowed. Buckley LJ however made it clear that the power to make an order 'is certainly not one which should be used to encourage fishing expeditions to enable a prospective plaintiff to discover whether he has got a case at all' (page 1188 para h).

Part 31.16 provides that a court may make an order for disclosure of documents before proceedings have commenced. 'Document' is defined by part 31.4 as, 'anything in which information of any description is recorded' and so includes CCTV/video footage as well as emails (emails may be sought following a serious accident at work where email exchanges between colleagues are not unusual).

The court can only make an order where a respondent is likely to be a party to any subsequent proceedings. In the leading authority of Black, the Court of Appeal considered what was meant by 'likely to be a party to subsequent proceedings' and determined that it meant only that persons were likely to be parties if subsequent proceedings were issued. In this context, 'likely' meant 'may well' rather than 'more probably than not'. So it is not necessary to show that proceedings are likely to be issued.

Part 31.16(3)(c) makes it clear that the pre-action disclosure is one which would have fallen within standard disclosure if proceedings had commenced. This was confirmed in Bermuda International Securities v KPMG [2001] Lloyd's Rep PN 392, in which Waller LJ commented:

'The circumstances spelt out by the rules show that it will only be ordered where the court could say that the documents asked for will be documents that will have to be produced at the standard disclosure stage. It follows from that the court must be clear what the issues in the litigation are likely to be, ie, what case the claimant is likely to be making, and what defence is likely to be being run, so as to make sure the documents being asked for are ones which will adversely affect the case of one side or the other, or support the case of one side or the other.'

In Peter Carroll v Christine Kynaston [2003] EWHC 2050, an application was refused as it related to a very wide and unspecified class of documents '“ 'postings, contributions, comments or messages'. Such a disparate and generalised list of documents would not have fallen into the category of standard disclosure. Further, in Snowstar Shipping v Graig Shipping Plc [2003] EWHC 1367 Comm, it was said that 'the more diffuse the allegations and the wider the disclosure sought, the more sceptical the court is entitled to be'. The application made by the claimant in Briggs & Forrester Electrical Ltd v (1) Governors of Southfield School for girls (2) Northamptonshire County Council [2005] EWHC 1734 (TCC) was considered to be too wide for documents to fall within the category of standard disclosure, as it included documents that bore no relation to the alleged breaches of contract. Accordingly, the application was granted only in part.

From a defendant's perspective, if the documents sought by the claimant are considered to be beyond what would be ordered by way of standard disclosure, a defendant who makes sensible disclosure has a better chance of being able to resist an order for further disclosure. In Steamship Mutual Underwriting v Baring [2004] All ER (D) 272, pre-action disclosure was refused in a case arising from alleged negligent investment management. The disclosure made by the defendant was considered to be sufficient for the claimant to assess whether or not they had a viable claim.

Part 31.16(3)(d) requires the court to be satisfied that disclosure is desirable to dispose fairly of the anticipated proceedings; assist the dispute to be resolved without proceedings; or save costs. For example, Baron WR Jay v Wilder Coe [2003] EWHC 1786 (QB) concerned the alleged negligence of a firm of accountants. When considering Part 31.16(3)(d), disclosure was ordered as it would aid resolution of the dispute without proceedings and so would save costs. Alternatively, it would assist the parties to dispose fairly of the anticipated proceedings.

Further, Part 31.16(3)(d) indicates that an application for pre-action disclosure may be contemplated for documents that do not go to liability, but causation and quantum '“ assuming of course that the above criteria are met.

In Meretz Investments NV v First Penthouse Ltd [2003] EWHC 2713 (Ch) the applicants were not entitled to pre-action disclosure relating to a penthouse development as their application was considered to be purely tactical and they were simply fishing for material to support their claim. The application was rejected by the court on the basis that it did not satisfy Part 31.16(3)(d).

When considering an application, the court enjoys a large discretion. However, it is not for the court to decide the issues before ordering disclosure. In Rose v Lynx Express [2004] EWCA Civ 447, at first instance, an application for pre-action disclosure was dismissed after the court had resolved a crucial question of construction. The Court of Appeal allowed the application and stated that courts should be hesitant about embarking on any determination of substantive issues in the case and that it would normally be sufficient to found an application for pre-action disclosure if the substantive claim was properly arguable and with a real prospect of success.

In MacDonald v French Connection Group Plc [2006] Ch D (Briggs J) 14 July 2006, a copyright case, the court ordered limited disclosure, as the disclosure sought was considered to be too wide and would be costly for the intended respondent '“ despite the applicant's argument that disclosure would assist in assessing the value of the claim and so make the prospect of compromise without the need to issue proceedings greater.

Further, it should not be assumed that an order will be made simply to punish a defendant. Hands arose from a commercial dispute concerning the design of a racing circuit. When considering whether to exercise his discretion and grant an application, Mr Recorder Briggs QC commented: 'It is not a discretion which exists to punish non-compliance with protocols and it is one which must have regard to the present effect and utility of the making of an order for pre-action disclosure, rather than be overly focused on the history which has led up to that application.'

Finally, it should be stressed that the letter of claim must be framed in the appropriate fashion to accord with the above rules in order to maximise the chances of the application being granted in full. In particular, care should be taken not to draft the letter of claim in too general terms. In Laurence v Commissioner of Police of the Metropolis, the claimant, a police informer, had given information in relation to possible terrorist activities at a significant risk to himself. After ceasing to be an informer, he instructed solicitors to pursue a claim for damages for psychiatric injury. The letter of claim did not identify the nature of the damage sustained by the claimant, but did ask for disclosure of material documents. The defendant refused to provide disclosure and the application was dismissed. The matter was heard by the Court of Appeal which dismissed the claimant's appeal as the letter of claim had not identified the nature of the damage said to have been sustained by the claimant to enable there to be any clear idea of the viability of the complaints made. The issues as to disclosure, the court concluded, could not be considered without a properly formulated letter of claim.

The application

Where a breach of the pre-action protocol has occurred, it is prudent to put the defendant on notice that unless the protocol is complied with (setting a time limit of perhaps 14 days) an application for pre-action disclosure will be made without further notice. In Merpro v Dynamic Processing [2003] All ER (D) 49 (Jan), the claimant requested voluntary disclosure on 20 November and issued their application just seven days later. The application was refused on the basis that there was no reason to believe that the defendant would not

have complied with the request for voluntary disclosure.

An application for pre-action disclosure must be supported by evidence. Usually this will be a statement made by the fee-earner with conduct of the claim. It should set out briefly the circumstances of the claim, the date the letter of claim was sent, when (if at all) it was acknowledged, when the protocol period expired and to what extent the protocol has been breached.

Copies of correspondence between the parties, including the letter of claim, should be exhibited to the statement. A draft order specifying realistic deadlines should be accompanied by a schedule of documents sought. The schedule of documents should reflect those requested in the letter of claim. Including documents not previously requested should be avoided unless, of course, additional documents have been identified in subsequent correspondence. The draft order should also provide that the defendant files a statement explaining the whereabouts of any documents no longer in their control. Finally, a statement of costs should be submitted.

The application should be served on the defendant (solicitors may have instructions to accept service in some cases) at the same time as the application is submitted to the court. It is sensible also to serve it on insurers who may be acting. This will give the defendant the opportunity to consent to the application without incurring further costs. If the matter proceeds to a hearing, the defendant must be given at least three days' notice.

Conclusion

The objectives of the pre-action protocol aim among other things to improve 'better and earlier exchange of information', 'better pre-action investigation by both sides' and 'to put the parties in a position where they may be able to settle cases fairly and early without litigation' (Lord Woolf, in his final Access to Justice Report (July 1996)). These objectives are reinforced by the procedure provided under Part 31.16.

Ideally of course, all defendants would respond within the time limit indicated, stating whether liability is admitted and, if denied, providing full disclosure. However, this is often not the case and an application for pre-action disclosure is a useful method of assisting claimants by compelling compliance of defendants in line with the overriding objective of the CPR.

Such an application, however, must be carefully crafted within the rules and taking account of the case examples given above so as to maximise the chances both of a defendant consenting to the application or a court looking favourably upon it. Time spent in this direction should be amply rewarded as unreasonable delay by a defendant prevents early resolution of a claim with potential cashflow implications for any claimant practice, leading to frustrated clients and creating evidential difficulties as time elapses. Early resolution is in everyone's interests, as it avoids both unnecessary costs and wasted court time.