In Anglo Irish Corporation Plc (Anglo) v West LB AG1 (West) Anglo applied for preaction disclosure of some of West’s internal documents pursuant to CPR 31.16. Anglo contended that it had a claim in negligent misstatement based on its purchase of derivative instruments from West.

The first three conditions of CPR 31.16 were not in dispute. The argument focused on the final condition; that disclosure is desirable to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings or save costs.

Anglo’s application was refused. The judge said “deals in financial instruments are often entered into between such institutions with relatively limited documentation. That is the situation here. To go further and require disclosure by one of the institutions of its internal documentation relating to the deal, should be rare in this kind of situation…it is one thing to require such an exercise mutually in the course of proceedings which have been commenced, but another to impose it unilaterally on a party against whom no proceedings have been taken”.