Case Alert -  EWHC 3011 (Comm)
Judge considers what needs to be proven to obtain pre-action disclosure and the impact of a limitation defence
The claimant applied for pre-action disclosure pursuant to CPR r31.16. The judge summarised the main principles when considering this type of application (citing Black v Sumitomo ). There was some discussion between the parties whether the applicant had to show that without the disclosure it could not properly plead its case and/or that even without disclosure, the case had a real prospect of success (those two issue being potentially inconsistent if they both have to be proven). The judge concluded that questions of the underlying merit of the claim should be left until the discretion (rather than the jurisdiction) stage.
He went on to add that "The potential width and focus of the classes of documents sought is a further matter for discretion". In an extreme case, though, an application could fail at the jurisdiction stage, on the basis that the documents sought were hopelessly wide: "I accept that where the categories of disclosure sought are extremely wide or unclear, the Court is unlikely to be prepared to rescue the application by, in effect, re-drafting them. However, in my judgment that does not mean that the Court has no power to adjust the categories of disclosure sought so as to deal with any particular problems, whether in terms of scope or availability, which may become apparent in the course of the application".
A further issue which arose was how a court should deal with an application where there was a potential limitation argument. The judge concluded that "Obviously, if it is submitted and the court finds that the claim is hopelessly time-barred with no real prospect of overcoming it, that would be a powerful if not conclusive reason not to order PAD since the entire exercise would be a waste of time. But if that is not the submission or finding, then it is simply a matter to be weighed in the exercise of discretion". On the facts of the case, he was far from persuaded that any claim issued would never get to the disclosure stage because it would be struck out on limitation grounds before then.
COMMENT: The judge's comments regarding not re-drafting the categories of documents being sought might be compared to the position in Attheraces v Ladbrokes Betting and Gaming Ltd, where it was held that it was not essential to clearly specify the documents being sought (although it was, of course, important to do this). The judge said that if he had been minded to grant the application, he would have allowed the applicants to "go back to the drawing board" to re-draft the order sought.
Also, following the introduction in April 2013 of the new "menu option" available to judges it was not clear whether and how this new option would impact on the pre-action disclosure test (which refers to standard disclosure alone). This case makes it clear that the documents requested in the application must still fall within the scope of standard disclosure (and indeed that is what CPR r31.16 also still provides).