A reminder that pre-action disclosure is not an exercise to ‘fish for material’

This case review was co-authored by Paddy Partridge, Solicitor Apprentice, Manchester.

This High Court decision provides guidance to parties wishing to make an application for pre-action disclosure. Deputy Master Brightwell was clear that a request for documentation needs to be clear and focused.

The facts

The case itself focused on a licence agreement and the broadcasting rights of the British Touring Car Championship and Porsche Carrera UK in US prisons.

The applicant, Willow Sports, owned the licensing and broadcasting rights and was to receive revenue from the first respondent, Sports Locker 24, and the second respondent, Team-Up Labs. Broadcasts would be provided for a fee of US$1 per prisoner and the service was anticipated to be used by around two million prisoners. The applicant sought damages on the basis that payment was never made and alleged fraudulent misrepresentation and conspiracy on the part of the respondents.

As part of the pre-action disclosure application, the applicant requested a long list of documents which included ‘all correspondence and information relating to payments’ and documents pertaining to the second respondent’s involvement. The respondents argued the application was essentially ‘normal disclosure’ and an attempt to circumvent the CPR.

Deputy Master Brightwell refused the application on the grounds of discretion. He held that the applicant’s request was simply too broad such that he was sceptical about the merits of the application. He reminded the applicant that disclosure before proceedings would only be made if strictly necessary.

The implications

This case is a strong reminder that pre-action disclosure applications should only be used if absolutely necessary. An order for disclosure before proceedings is outside the normal course of events and is by its very nature, unusual. The decision here is in line with the position taken in Carillion v KPMG [2020] in that pre-action disclosure requests should not be made as a matter of course. In light of the courts now taking a consistent approach, adverse costs orders are increasingly likely and have the potential to be more severe.

Whilst it is not for the court to ‘prune’ and confine the document request, the court will equally be suspicious if the applications are so wide that they appear to simply be a means to obtain general material to flesh out a case.

When considering a pre-action disclosure application, the request must therefore be specific and focused on the allegations. It must be material to the facts in dispute and one should always consider the necessity of the application. If it will not assist with articulation of a case/defence, the court will unlikely grant it and insurers and their insured clients, will likely face adverse cost orders in these situations.

One should not therefore be inclined to ‘go fish’ unnecessarily.

Related item: Pre-action disclosure can no longer be used as a ‘fishing expedition’ to further advance a claimant’s case