An applicant for pre-action disclosure must show that its potential claim is more than merely speculative for an application to succeed. The courts will not grant such an application where the applicant is simply on a "fishing expedition".

In Kneale v Barclays Bank Plc (t/a Barclaycard), Kneale had an outstanding balance on his account which the bank was pursuing. He requested a copy of the executed agreement he had made with the bank pursuant to s78 of the Consumer Credit Act 1974.

The bank provided copies of the pro forma documents but not a copy of the signed agreement itself. Kneale sought pre-action disclosure of the signed agreement to ascertain whether it was enforceable or not. The basis of his application was that he had seen advertisements from claims handling companies and was aware that many such agreements had been found to be unenforceable due to certain provisions in the Consumer Credit Act 2006. An order for pre-action disclosure was made but the bank successfully appealed.

The court found that for an application to succeed, the parties had to be likely to be parties to subsequent proceedings, that is, there was some sort of prima facie case which was more than a merely speculative 'punt'. Further, the pre-action disclosure sought had to be desirable to dispose fairly of the proceedings, assist resolution without proceedings or save costs.

The court considered that Kneale had not brought any evidence to suggest his agreement might be unenforceable and, in fact, it was doubtful that it was necessary for him to have a copy of the signed agreement to determine whether he had a claim. The material he already had was sufficient for him to have argued his case, had he got one. The court considered that the claim was without merit and speculative.

Things to consider

Pre-action disclosure applications are generally difficult to obtain, and particularly where the potential claim is highly speculative, as was the case here. This will be a useful judgment for lenders faced with similar speculative applications from defaulting debtors.