The claimants proposed pre-action discovery which was resisted.
Held: A purpose of pre-action disclosure is to assist those who need disclosure as a vital step in deciding whether to litigate at all or to provide a vital ingredient in the pleading of their case. The rules required first that disclosure would be desirable in the interest of justice, and second that such an order would be fair to the parties if litigation was commenced, or would assist the parties to avoid litigation, or to save costs in any event. It was necessary not to confuse the jurisdictional and the discretionary aspects. There were two stages which may be hard to differentiate fully, but that may not be entirely necessary if they were satisfied. Rix LJ said: ‘In appropriate circumstances, where the jurisdictional thresholds have been crossed, the court might be entitled to take the view that transparency would be what the interests of justice and proportionality most required’.
Judges:
Lord Justice Ward, Lord Justice May, And, Lord Justice Rix
Citations:
[2003] 3 All ER 643, [2002] 1 Lloyd’s Rep 693, [2002] CPLR 148, [2002] 1 LLR 693, Times 25-Jan-2002, [2001] EWCA Civ 1819, [2002] 1 WLR 1562
Statutes:
Civil Procedure Rules 31.16(3)(d)
Jurisdiction:
England and Wales
Citing:
See Also – Black and Another v Sumitomo Corporation and others CA 28-Sep-2001
The defendants had been given extended time to comply with an order for pre-action discovery. Leave to appeal had been granted, with a stay, but there was confusion as to whether expedition was also ordered. The current date had been fixed, but . .
Cited by:
Cited – USP Strategies Plc and Another v London General Holdings Ltd and others ChD 1-Mar-2004
In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the . .
Cited – Mitsui and Co Ltd v Nexen Petroleum UK Ltd ChD 29-Apr-2005
Mitsui sought disclosure of documents from a third party under the rules in Norwich Pharmacal.
Held: Such relief was available ‘where the claimant requires the disclosure of crucial information in order to be able to bring its claim or where . .
Cited – Hughes v Carratu International Plc QBD 19-Jul-2006
The claimant wished to bring an action against the defendant enquiry agent, saying that it had obtained unlawful access to details of his bank accounts, and now sought disclosure of documents. The defendant denied wrongdoing, and said it had . .
Cited – BSW Ltd v Balltec Ltd ChD 11-Apr-2006
Pre-action disclosure. The test of a properly arguable case with a real prospect of success is the same test as is set out in CPR 13.3(1) and 24.2 in relation to setting aside judgments in default and resisting summary judgment respectively. The . .
Cited – Kneale v Barclays Bank Plc (T/A Barclaycard) ComC 23-Jul-2010
The bank appealed against an order for pre-action dicslosure and payment of the costs to date of its customers request for copies of the agreement under which it sought payment, and otherwise.
Held: After Carey it was not to be argued . .
Considered – Pineway Ltd v London Mining Plc ComC 20-May-2010
Application was made for an order for pre-action disclosure. Having considered Black v Sumitomo Steele J said: But although the likelihood of proceedings as such is not material, it does not follow in my judgment that the existence of a prima . .
Cited – A and Another v Somerset County Council QBD 11-Oct-2012
Appeal against refusal of order for pre-action disclosure. . .
Lists of cited by and citing cases may be incomplete.
Jurisdiction, Civil Procedure Rules
Updated: 08 May 2022; Ref: scu.166950