Kneale v Barclays Bank plc  EWHC 1900 (Comm)
In this case Flaux J considered (on appeal from Chester County Court) the jurisdictional threshold for pre-action disclosure in CPR 31.16(3)(a) and (b) and preferred the lower requirement in Black v Sumitomo  1 WLR 1562 to that in Rose v Lynx Express  EWCA Civ 447.
Kneale was a credit card customer of the bank, who had made a series of requests for his credit card agreement under section 78 of the Consumer Credit Act 1974. When the bank provided only pro forma documents, Kneale made an application under CPR 31.16 for the signed agreement itself. Flaux J found that he had provided no evidence as to whether his position was that he did not sign an agreement, whether he recalled signing an agreement, or whether he accepted he must have done. He considered the jurisdictional threshold in CPR 31.16(3)(a) and (b).
He concluded that the fi rst requirement was that the applicant had a prima facie arguable case, or one that is “more than merely a speculative punt”. He rejected the idea from Rose that the applicant needed to show that he had a real prospect of success. However, even on the lower threshold, Kneale’s application was dismissed by Flaux J. In the absence of evidence, the test of desirability under CPR 31.16(3)(d) was also not satisfi ed.
Flaux J also confi rmed the position in respect of the costs of such applications – the general rule is that costs will be awarded to the person against whom the order is sought. He overturned the lower court’s decision to order costs against the bank on the basis that merely opposing an application did not justify a departure from this general rule.
This is a useful decision as it removes a little uncertainty from the way CPR 31.16 operates. The court’s view of the jurisdictional test would seem to be correct given the absence of the words “real prospect of success” in CPR 31.16 when used so frequently in other rules. It is also helpful for banks as it would seem to restrict the circumstances in which speculative requests for credit agreements can be made outwith section 78 of the 1974 Act.