Carter-Ruck for claimants, Child & Child for defendants
The claimants applied for pre-action disclosure under CPR r31.16. The next day they issued a claim form (as a limitation period was about to expire), but they had not served the claim form by the time of the hearing of the application. One issue in this case was whether the court had jurisdiction to make the order.
Moloney QC HHJ approved the approach of Morgan J in a recent unreported decision, Personal Management Solutions v Gee 7 Group. Morgan J held that an earlier line of cases which had been thought to authorise pre-action disclosure applications post-issue had been misinterpreted. He instead found that the court would not have jurisdiction to hear a pre-action disclosure application where proceedings were commenced after the application was made but before it was heard.
However, if the claimant undertook to discontinue the first action and begin a second action which was not an abuse of process, the court would have jurisdiction over a CPR r31.16 application relating to the second action, but not the first.