Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585 establishes that applicants for pre-action disclosure need not show they have an arguable case in order to satisfy the criteria under CPR 31.16. The Court of Appeal stressed that such applications should be disposed of swiftly and economically, without the need for a mini-trial. While the strength of a case is still likely to be relevant to the court's exercise of its discretion, the bar has been set considerably lower than it was previously. Banks and other institutions facing demands for substantial disclosure of customer files are likely to find it more difficult to resist those applications than before.

Background

Mr Smith was a former miner who had been employed by the National Coal Board. He alleged that he had suffered hearing loss as a result of the failure of his employer to take adequate steps to protect him from the effects of the noisy environment underground. His solicitors wrote a letter of claim that included a request for the disclosure of a range of documents, including those that might help to establish the levels of noise experienced in the mines, together with his employer's knowledge of those levels and their attendant risks.

The request was refused, and in response, Mr Smith made an application for pre-action disclosure under CPR 31.16. At first instance, the district judge ordered disclosure of some, but not all, documents. This decision was appealed to the circuit judge, and was overturned. Mr Smith in turn appealed to the Court of Appeal.

CPR 31.16

The relevant part of CPR 31.16 is as follows:

(3) The court may make an order under this rule only where–

  • the respondent is likely to be a party to subsequent proceedings;
  • the applicant is also likely to be a party to those proceedings;
  • if proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents of which the applicant seeks disclosure;
  • disclosure before proceedings have started is desirable in order to –
    • dispose fairly of the anticipated proceedings;
    • assist the dispute to be resolved without proceedings; or
    • save costs.

Leading cases

The Court of Appeal, in coming to its decision, focused on the two leading cases in the area: Black v Sumitomo [2002] 1 LWR 1562  and Kneale v Barclays Bank [2010] EWHC 1900 (Comm).

Black makes clear that the test for whether pre-action disclosure should be given is formed of two stages. Firstly, the jurisdictional thresholds set out at CPR 31.16(3)(a)-(d) need to be met. Only once these have been met, can the Court then proceed to consider the whether, as a matter of discretion, an order for disclosure should be made. Black also made clear, in respect of heads (a) and (b), that there is no requirement to show that it is likely that proceedings will be issued, only that, if subsequent proceedings were to be issued, it would be likely that the applicant and the respondent would be parties to the litigation.

Kneale considered that Black left an important question unanswered. That question was whether or not there existed a further (implicit) jurisdictional threshold, that in order to satisfy CPR 31.16(3)(a) and (b), an applicant needs to demonstrate an arguable case. In Kneale, the judge determined that such a further requirement did exist, albeit that it presented only a modest jurisdictional requirement: "because CPR 31.16(3)(a) and (b) do require the applicant to show that proceedings may well ensue… the applicant has to show some sort of prima facie case which is more than a merely speculative 'punt'…"

Smith: the decision

Before the case came to the Court of Appeal, the Circuit Judge had refused to order pre-action disclosure on the basis that Mr Smith had failed to satisfy the "modest jurisdictional threshold" outlined above (in other words, Mr Smith had failed to show that his case was anything more than a speculative punt). The Court of Appeal was concerned only with whether or not the judge in Kneale had been correct to interpret CPR 31.16 as including such a jurisdictional threshold at all.

The Court of Appeal overturned Kneale, stating that such a jurisdictional threshold did not exist. Underhill LJ, who gave the leading judgment, held that to impose such a threshold would lead to the question of how high it should be set. He said that such abstract arguments tend to be "arid and unhelpful" and that it is inherently better that questions about the likelihood of the applicant being able in due course to establish a viable claim are considered as part of a flexible exercise of the court's discretion in the context of a particular case".

Analysis

Smith makes clear that it is no longer sufficient to argue that, because the applicant has no arguable case, the Court should dismiss the application without exercising its discretion. Having a speculative case (or no case at all) will not be fatal to an application. A Court will only refuse to consider exercising its discretion in favour of or against an application, if the thresholds set out CPR 31.16(1)(3)(a)-(d) are not satisfied.

Nevertheless, the fact that an applicant has a speculative case will still be a factor going to the "discretionary balance" (per Rix LJ in Black). It will therefore be considered along with other factors, such as the limits to the disclosure sought.

Banks and other bodies which are frequent targets of demands for pre-action disclosure will naturally be anxious to understand how the courts will exercise their discretion in the light of this Judgment. The signs are not encouraging. The case which the applicant was anticipating bringing in Smith was clearly weak and (according to the Circuit Judge) not even arguable. But it was enough to allow him to obtain pre-action disclosure.