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 Court of Appeal in Rose had not been concerned with whether a lower threshold than a good arguable case satisfied the requirements of CPR 31.16: ‘The leading case on the exercise of the Court’s powers under CPR 31.16 is the decision of the Court of Appeal in Black v Sumitomo Corporation [2002] 1 WLR 1562. In Rose v Lynx Express Ltd this decision was not referred to by the Court of Appeal. Having decided that the applicant’s construction of the articles of association was ‘properly arguable’ the Court of Appeal appears to have considered that the jurisdictional conditions specified in CPR 31.16 (3) had been satisfied. The only objection to the making of the order seems to have been based on the meaning to be attached to the relevant article. It was therefore unnecessary for the Court of Appeal in that case to decide whether a lower threshold than a good arguable case satisfied the requirements of CPR 31.16 (3) and how the discretion should be exercised in such circumstances. But in Black v Sumitomo these issues did arise for consideration.’


Patten J


[2006] EWHC 822 (Ch)




Civil Procedure Rules


England and Wales


CitedBlack v Sumitomo Corporation CA 3-Dec-2001
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 . .
CitedRose v Lynx Express Ltd. and Bridgepoint Capital (Nominees) Ltd CA 7-Apr-2004
In an request for pre-action discovery it was plainly wrong for the court to seek to decide in advance any element of the virtues of the case.
Held: The appeal should be allowed. The case was arguable and should be allowed to proceed.

Cited by:

CitedKneale 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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 September 2022; Ref: scu.240343