A weapon of value to litigants in England is the ability to seek disclosure of documents from a likely party to litigation before proceedings start. Obtaining such pre-action disclosure can yield crucial information at the earliest possible time which can save costs, enable any subsequent claim to be pleaded more precisely, narrow the issues in dispute between the parties, and encourage early settlement. In some cases, pre-action disclosure can even avoid the need for proceedings to be commenced altogether.
In the recent decision of ED&F Man Capital Markets LLP v Obex Securities LLC and another (“Man v Obex”),1 the English court found that pre-action disclosure is available against parties located outside England and Wales. This is a welcome development for prospective claimants in cross border litigation before the English courts, as commentators had previously doubted that pre-action disclosure could be obtained against an overseas party.
To obtain an order for pre-action disclosure before the courts in England, an applicant needs to show that:
- the respondent is likely to be a party to subsequent proceedings;
- the requested documents would have been disclosable under English disclosure rules at the conventional time for disclosure if proceedings had been commenced; and
- pre-action disclosure is desirable in the circumstances (for example, because it would save costs or assist resolving the dispute fairly or without subsequent proceedings).
In addition, though, where the respondent is resident outside the jurisdiction of the English courts, permission to serve the respondent with an application is generally needed. To obtain that permission, the applicant needs to show that:
- there is a serious issue to be tried on the merits of the application against the foreign party;
- there is a good arguable case that the application falls within the grounds in the English court rules for service out of the jurisdiction; and
- England and Wales is the most appropriate forum for the dispute.
Man v Obex concerned an application for pre-action disclosure brought by Man, a global brokerage business within the ED&F Man Group, against (i) Obex, a New York based financial services provider within the Obex Group, and (ii) the President and CEO of the Obex Group. Man and Obex had entered into an Introducing Broker Agreement under which Obex had introduced a number of clients to Man. Following those introductions, a dispute arose and Man was considering bringing a claim against Obex for fraudulent misrepresentation.
The court found in Man’s favour in relation to both of the above tests – for pre-action disclosure and for service out of the jurisdiction – and exercised its discretion to permit Man’s application for pre-action disclosure to be served in New York. Prior to this ruling, it was widely understood that such a remedy was unavailable in England.
Takeaways for Prospective Litigants in England
The English courts remain a popular choice for the settlement of international disputes. Apart from enjoying a strong reputation for the quality and independence of the judiciary, attractions for many litigants are the panoply of remedies and procedural tools available. Those include the ability to obtain what can be wide ranging disclosure from opponents, and in some instances from non-parties, once litigation has been commenced.
The recent decision in Man v Obex further enhances the appeal of the English courts in international cases by choosing to avoid, in the words of the judge, an unfair disadvantage prior to the commencement of proceedings to “litigants who are in dispute with certain classes of foreign defendant” before the English court. The result is that litigants can in appropriate cases now look to obtain pre-action disclosure against non-resident parties. This is in keeping with an earlier decision (on which we previously reported) in which the court permitted an application for so-called Norwich Pharmacal relief to be made against a party out of its jurisdiction.
The trend therefore appears to be towards the English courts facilitating disclosure remedies against non-resident parties, both prior to and after the commencement of litigation, a trend which will be welcomed by claimants in international cases.