The Claimant was aged 65 and had been employed from 1964 to 1994  by the National Coal Board (latterly the British Coal Corporation). Until 1979 he worked underground, for one year at Markham colliery and thereafter at Rossington. From 1979 to 1984 he had a job which involved him going underground regularly.

The Claimant alleged that he had suffered hearing loss because the National Coal Board had failed to take adequate steps to protect him from the damaging effects of noise and, in particular, that he had never been provided with hearing protection.

The Defendant, the Secretary of State, was the National Coal Board’s statutory successor. The Claimant obtained disclosure of his work medical and personnel records.  He requested further disclosure of documents which might help to establish the levels of noise in various pits where he had worked, and the National Coal Board’s knowledge of those levels and the consequent risks.

The Secretary of State refused and the Claimant made an application under CPR 31.16 for pre action disclosure. The District Judge ordered disclosure of several, though not all, of the categories of documents sought in the letter of claim.

Those documents were to cover only the period during which the Appellant worked at Markham and Rossington, from 1964 to 1979.

The Secretary of State appealed on the ground that the Claimant had failed to provide evidence that was more than merely speculative, the bare minimum evidence the Claimant should have provided would have been a screening audiogram or a medical opinion. The appeal was allowed and the  application dismissed.

The Claimant appealed to the Court of Appeal. The Court of Appeal allowed the Claimant’s application for pre-action disclosure.

It was found the Judge had been wrong to find that CPR r31.16 (3)a and 31.16.(3)b prescribed any kind of jurisdictional threshold of arguability. The question should rather be whether the Claimant had shown some reason to believe that he might have suffered a compensatable injury and, if so, with what degree of likelihood.   Although it was advisable that potential Claimants provided more evidence than the Claimant had done in this case where, although the Claimant had provided very little, the District Judge had correctly exercised his discretion by allowing the application without the need for an audiogram or a medical opinion.