This article first appeared on the Practical Law Dispute Resolution blog on 21 March 2017.

Overview of the application

In Attheraces Ltd and another v Ladbrokes Betting and Gaming Ltd and others, potential proceedings concerned the alleged misuse of horseracing broadcasts (the off-tube commentaries).

The applicants sought disclosure about how certain off-tube commentaries had been produced, claiming that they did not know how they had been produced but needing to know this so that they could consider their cause of action. The applicants therefore applied under section 33(2) of the Senior Courts Act 1981 and pursuant CPR 31.16 for pre-action disclosure.

As can often happen, after the application had been issued but before the hearing, further information had been provided by the respondents. This was through correspondence and by way of evidence in response.

Focusing on the evidence only, albeit acknowledging the dispute as to the adequacy of the pre-application correspondence and whether the application was ever warranted, Marcus Smith J said it had relieved the applicants of the ignorance of the source. Accordingly, whilst the applicants may not have had the necessary information to draft a claim when the application was issued, they did now.

The provision of the information had also meant that the basis of the claims in the application to what was postulated at the hearing had changed substantially. The scope of the documents sought against the Ladbroke/Coral Group respondents (first to fifth respondents) had to be substantially modified. The scope of those documents sought against the BetFred respondents (sixth and seventh respondents) had to be wholly revisited. These modifications were dealt with in a draft order, produced by the applicants on the day.

The respondents contended that what was now being sought, by way of the draft order, was such a drastic change to the application that the application should have been refused on that ground alone. The applicants maintained that they were simply refining their application, based on the information provided by the respondents in evidence.

Marcus Smith J rejected the respondents’ contention. However, he determined that the evidence provided had either answered, or gone a long way towards answering, the basis of the application, such that the applicants had a choice at that point. The choice was either to take stock in light of the information they had, or to press on with a materially different application. The judge said that the applicants’ choice was theirs to make, but that they should bear the consequence (which ultimately they did).

The decision

The test under CPR 31.16(3) is a two-stage test: stage one, are the conditions of CPR 31.16(3)(a) to (d) met? Stage two, if so, how should the discretion be exercised?

CPR 31.16(3)(a) requires that a respondent to an application must be likely to be a party to proceedings. Similarly, CPR 31.16(3)(b) requires that an application must be likely to be a party to proceedings. The judge was satisfied that it was “likely” (meaning no more than “may well”) that both applicants would be parties and that at least one of the respondents would be.

CPR 31.16(3)(c) states that the disclosure sought must be that which would fall within the duty of standard disclosure and therefore an application for pre-action disclosure should be “crafted with great care, and should be limited to what is strictly necessary”. Unfortunately for the applicants, it was here that they began:

“… to pay the price for the absence of any clear formulation of their case against the Ladbrokes/Coral Group and the Betfred Group… a properly articulated conspiracy and passing off claim against the Respondents – even if it had gaps or blanks or square brackets – would have been enormously helpful in determining whether the documents within the classes of disclosure sought by the Applicants fell (on the balance of probabilities) within standard disclosure”.

The classes of documents sought had been so widely drawn that it would seemingly have been impossible for the respondents to have successfully argued that none of the documents fell within standard disclosure. However, the judge held that the order could have been more properly refined and improved. Whether a party would be permitted to go back to the drawing board, to reconsider the scope of the disclosure sought, depends on the circumstances. However, the judge stated that he would not have permitted it in this case, due to the likelihood of this leading to a further contested hearing.

Finally, CPR 31.16(3)(d) states that the objectives of pre-action disclosure are to:

  • Dispose fairly of the anticipated proceedings.
  • Assist the dispute to be resolved without proceedings.

This subsection has both a jurisdictional and discretionary aspect. The judge held that the applicants could not show a real prospect that any of the three objectives could be met. Whatever may have been the position when the application was made, information had been provided such that the jurisdictional stage failed.

Points to take away from the case

  • Applications can present a moveable feast; if the issuing of the application yields the necessary information, step back and consider how you will satisfy the jurisdictional point.
  • It is often useful to send the application to the respondents in draft form to try and elicit a response before the cost of issue.
  • If the information given in response (both to the draft application and after issue) goes some way but not far enough, check what outstanding information is necessary to meet the objectives of CPR 31.16(3)(d) and amend the basis of your application in advance. Do not leave it until the day to move the goal posts.
  • In this case, the judge had no interest in trawling through the protracted correspondence to determine whether or not the information had been provided. Put the response in evidence form.
  • Widely drawn orders or requests are likely to fall foul of the conditions. Ask yourself: What do I need? Would this form part of standard disclosure? How does obtaining the document at this stage satisfy the objectives of CPR 31.16(3)(d)?
  • Think critically about your own case and whether the information sought really is necessary pre-issue, or whether it can be properly dealt with once all the cards are on the table.