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

This decision, which labels pre-action disclosure as not “the norm” should leave claimants thinking twice about making an application for pre-action disclosure where their case can already be made with the documents available.

The case involved an application in the Commercial Court for pre-action disclosure. The unsuccessful application was made by Carillion against its former auditors KPMG. Mr Justice Jacobs’ judgment provides some helpful comments on pre-action conduct and disclosure, encouraging parties to exchange no more than a ring binder of “key” documentation and to certainly not use the pre-action disclosure process as a means to further advance or better a case. This should come as welcome news to professionals and their professional indemnity insurers who are often on the receiving end of unwarranted applications as a means for claimants’ to hunt out documents advantageous to their case early on in the dispute.

This is a timely decision as the current COVID situation brings significant challenges for companies, D&Os and their professional advisors.

Background

The intended action arises from the collapse of Carillion Group. The focus of the claim is that, as auditors, KPMG did not detect that the financial statements of Carillion failed to reflect the company’s true financial position.

Carillion made an application for pre-action disclosure from KPMG, on the basis that KMPG had refused to provide any of its working papers voluntarily, that those papers will be core documents in the future action, and are essential to proper pre-action consideration and pleading of a claim against KPMG.

KPMG resisted the application on the grounds that:

1. Standard disclosure does not extend to the documents sought
2. Disclosure of those documents will not seek to dispose fairly of the anticipated proceedings, or assist in settlement, or save costs.

The decision

Jacobs J agreed with KMPG and held that the documents requested by Carillion went beyond, a reasonable request for documentation in the context of the pre-action protocol which envisages and requires both parties to only provide "key" documents. The judge’s guidance suggests that volume of “key” documents are expected to be limited to one file.

Jacobs J dismissed the Application on the basis that:

1. Carillion could satisfactorily plead its case based on the documents it already had available.
2. Pre-action disclosure is not “the norm” and the intention is for disclosure to be provided only once the litigation has started, especially in the Commercial Court which has taken steps (reflected in the Disclosure Pilot) to control that disclosure.
3. The scale of the exercise and the burden of complying with the order sought would have required KPMG to review some 8,500 documents.
4. This case would develop regardless of the information available at this stage.

Comment

This case should be welcomed by professionals on the receiving end of a professional indemnity claim, as well as their insurers. The decision puts pressure on claimants to show that their request for disclosure is not a tactical fishing expedition pursued with the sole intention to further/better their case. The Court is clear that pre-action disclosure will only be ordered if it is intrinsic to a party being able to satisfactorily plead their case.

Time and time again, we see poorly particularised letters of claim, which are coupled with an unwarranted pre-action disclosure request. This decision reinforces that claimants cannot take advantage of the pre-action protocol and force potential defendants to provide information that will help claimants to plead a stronger/fully substantiated claim. Indeed, this case should serve as a helpful authority, when responding to such threats, particularly from a costs perspective.

This is particularly so when we expect more ‘Carillion like’ cases as a result of the current unprecedented situation and impact on the global economy. Whilst this decision will not prevent claims arising against companies, D&Os and their professional advisers and will certainly not mean an end to pre-action disclosure requests, the Court is clear that even when faced with a legitimate disclosure application, the request must be reasonably balanced against the time and cost of complying with such an order. What the Court will not tolerate is unspecific, sweeping claims, the likes of which we anticipate in the wake of COVID-19.

Related items:

• Inside information disclosure during suspension of trading: Mayer Holdings v Securities and Futures Commission
• UK regulators’ response to COVID-19: update
• The UK Corporate Governance Code 2018: avoiding failure, fraud and scandal

Read other items in Professions and Financial Lines Brief - October 2020