Following alleged asbestos contamination, GSSG sent B&F a detailed claim letter in accordance with the Construction Pre-Action Protocol claiming damages. B&F took issue with the extent of the contamination and the quantum claimed and sought extensive pre-action disclosure of some 55 categories of documents. This lead to an application for pre-action disclosure before HHJ Coulson QC. Under CPR 31.16, such an application may be made where disclosure before proceedings is desirable to dispose fairly or assist in resolving the anticipated proceedings or to save costs.
The Judge held that it was appropriate to exercise his discretion and grant pre-action disclosure of the quantum documents. However the other requests were too wide and the documents sought were too peripheral to the real issues in dispute. The Judge had to balance whether the documents sought would narrow the issues, cut down on expert evidence and accelerate the settlement process against the significant costs that would be incurred if the wide disclosure request was granted in full. Although there is nothing in the Construction Protocol that requires large scale disclosure, in the general CPR protocols, there is a requirement to disclose key documents. The Judge appreciated the concern that complying with the protocols can be expensive. There would be further concern if it was thought that a prospective claimant embarking on the Construction Protocol procedure would be routinely obliged to provide the sort of onerous disclosure initially sought here by B&F. Accordingly, pre action disclosure was allowed but on a strictly limited basis.