Use without abuse

If your opposite number is not providing documentation in accordance with a relevant practice direction or pre-action protocol, or you need to see some further material before deciding whether to start proceedings, the Civil Procedure Rules 1998 rule 31.16 enables you to apply for pre-action disclosure. It is now a well-used tool, but some might say it is one which is being abused, so, if you want your application to achieve its objective, there are a few points that should be borne in mind.

First, the essentials. Any application must be supported by evidence, although this can, of course, be on the application notice itself. And an order can be made only if the applicant and respondent are likely to be parties to subsequent proceedings and the respondent's duty of standard disclosure would extend to the documents in respect of which the applicant seeks disclosure. Most importantly, disclosure before proceedings have started must be desirable in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings, or save costs. None of this usually causes a problem.

Include a draft order. Do not insert a date for compliance. It is helpful if the court does not have to draw up the order but can use your version. So, instead, consider using the following formula: [insert a date 21 days from the drawing of this order]. That accommodates the vagaries of the post and gives enough time to comply. Be careful not to overlook the provisions of 31.16(4), an all-too-common mistake. This provides that an order must require a respondent to specify documents which are no longer in his control or in respect of which he claims the right to withhold inspection.

Considering costs

To avoid listing problems, many courts will now deal with these applications on paper, leaving it for the respondent to apply to set aside the order if dissatisfied. You will certainly minimise your chance of being listed for a hearing if you have thought about the documents you are seeking and the list is proportionate rather than a standard computer-generated list. The same goes for your costs schedule. If this is very high, explain any particular reason for that otherwise you risk having costs assessed at a much lower figure than if you had pitched it more sensibly.

But are you entitled to the costs anyway? Surprisingly, the respondent's costs of the application are normally paid by the applicant (CPR rule 48.1 (2)). It is clear, however, from the various pre-action protocols that the aim of early disclosure is to promote an early exchange of relevant information to help in clarifying or resolving issues in dispute without recourse to the courts. If that aim is being frustrated by a respondent who is not complying, the court will have no hesitation about making a different order '“ and almost invariably does '“ instead requiring the respondent to pay the applicant's costs.

Failing to comply

Failure to comply with an order for pre-action disclosure is a contempt of court. The next step is to apply for a penal notice to be endorsed on the order. If the respondent is, for example, a company, then an individual, most likely the managing director, will need to be named. That is likely to suffice.

An order barring the respondent from defending any subsequent as yet unparticularised proceedings if it fails to comply is inappropriate and disproportionate. The issue is more properly dealt with by way of costs sanctions in those proceedings.

That leads onto the question: can an order for pre-action disclosure also make provision requiring the respondent to admit or deny liability? It can '“ at least in theory. Paragraph 3.7 of the Pre-action Protocol for Personal Injury Claims requires a defendant at the end of the three-month period of investigation to state whether liability is denied and, if so, giving reasons for their denial of liability including any alternative version of events relied on. So, if that has not been done, there is no reason why a court should not make an order in that respect and, conveniently, when making an order for pre-action disclosure. Practice, however, varies and I certainly would not usually make such orders.

Finally, a related provision, rule 31.17, deals with orders for disclosure against a person who is not a party. It is a provision which requires careful reading because it is not all that it seems. It starts by saying that 'this rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings' (my emphasis). The clear implication here is that, for an application to be made under rule 31.17, proceedings must already be in existence. So, it is not possible for the court to make an order for pre-action disclosure against a third party '“ at least, not pursuant to rule 31.17. However, rule 31.18 makes it clear that rules 31.16 and 31.17 do not limit any other power the court may have to order disclosure before proceedings have started and disclosure against a person who is not a party to the proceedings. Such other powers include disclosing the identity of a wrongdoer (the Norwich Pharmacal principle), Anton Piller and Mareva relief and disclosure in aid of execution of judgment under CPR part 71.