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.
Peter Gibson LJ said: ‘We have reservations about the approach adopted by the judge. We are concerned whether it is possible, and it is in our view certainly unsatisfactory, to have a situation in which what is described as a straightforward issue of construction is decided one way for one purpose, but may later be re-argued and possibly decided differently during the course of subsequent proceedings. Further, whether or not the determination would be binding at the trial of the substantive claim, there are practical dangers about considering any substantive issue, and particularly the core issue in the action, in the context of an application for pre-action disclosure. At the pre-action stage, the parties may not have thought through or seen all the implications of the issue in the same way as they will have done by the time when it comes to be tried. Any pre-action determination will have to take place in the light of assumptions about the factual circumstances, which may prove incomplete or incorrect. The actual factual circumstances, when known, may throw up problems about a particular construction of the articles which may not have been apparent at the pre-action stage. We think therefore that courts should be hesitant, in the context of an application for pre-action disclosure, about embarking upon any determination of substantive issues in the case. In our view it will normally be sufficient to found an application under CPR 31.16(3) for the substantive claim pursued in the proceedings to be properly arguable and to have a real prospect of success, and it will normally be appropriate to approach the conditions in CPR 31.16(3) on that basis.’
Judges:
Lord Justice Peter Gibson Mr Justice Keene Lord Justice Mance
Citations:
[2004] EWCA Civ 447, Times 22-Apr-2004, [2004] 1 BCLC 455
Links:
Statutes:
Civil Procedure Rules 31.16(3)
Jurisdiction:
England and Wales
Citing:
Cited – East End Dwelling Co Ltd v Finsbury Borough Council HL 1952
The house was asked whether a hypothetically rebuilt block of flats would have been subject to the Rent Restriction Acts.
Held: Lord Asquith said: ‘If you are bidden to treat an imaginary state of affairs as real, you must surely, unless . .
Cited – Safeguard Industrial Investments Ltd v National Westminster Bank Ltd CA 1982
The case concerned pre-emption provisions in a company’s Articles, providing that no ordinary share should be transferred to a person who was not a member as long as any member was willing to purchase the same at the fair value and that ‘the . .
Cited – Bratton Seymour Service Co Ltd v Oxborough CA 1992
The company was set up to acquire and manage a property divided into flats which also included ‘amenity areas’ (tennis courts, swimming pool, gardens). It was argued that there should be implied into the articles of association an obligation on the . .
Cited – Greenhalgh v Mallard CA 1943
The court said of certain pre-emption provisions: ‘in the case of the restriction of transfer of shares I think it is right for the court to remember that a share, being personal property, is prima facie transferable, although the conditions of the . .
Cited by:
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 . .
Applied – 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.
Company, Litigation Practice, Civil Procedure Rules
Updated: 10 June 2022; Ref: scu.195489