The courts will not tolerate 'fishing expeditions' in pre-action disclosure

The issue of how much documentation a party is entitled to see as part of the pre-action process remains open to debate. Claimant and defendant lawyers tend to differ in their interpretation of the relatively imprecise wording in the various protocols. This has and continues to lead to satellite litigation in court on the issue of ?pre-action disclosure, as parties fight to obtain a tactical advantage during the pre-action stage.

The principles behind pre-action disclosure are to: 1) exchange sufficient information to allow the parties to understand each other's case; and 2) make appropriate attempts to resolve the matter without commencing proceedings.

The practice direction states that parties should act in a reasonable and proportionate manner, considering the complexity of the matter and the amount at stake. The parties are encouraged to take a reasonable approach to the disclosure process.

It is perhaps understandable that solicitors acting for potential litigants have sought to use the pre-action process to try and improve their client's position or take a tactical advantage, but ignoring the guidance set out in the CPR about the principles and processes to be applied and taking an excessively aggressive or broad approach to disclosure requests and, in particular, 'fishing' has been frowned upon by the courts.

Pre-action disclosure applications are made pursuant to CPR 31.16. In the case of BSW Ltd v Balltec Ltd [2006] EWHC 822 (Ch), Patten J refused to grant an order for pre-action disclosure on the basis that the application was speculative and there was little evidence that the applicant would be in a position to bring a claim against the respondent. Patten J made reference to Shaw v Vauxhall Motors Ltd [1974] 2 All ER 1185, where Buckley LJ said that the 'power to order discovery before proceedings are commenced is certainly not one which should be used to encourage fishing expeditions to enable a prospective plaintiff to discover whether he has in fact got a case at all'.

The judge also stated that the categories requested were too broad. In Herbert Black and Ors v Sumitomo Corporation and Ors [2001] EWCA Civ 1819, Rix LJ stated: 'The more focused the complaint and the more limited the disclosure sought in that connection, the easier it is for the court to exercise its discretion in favour of pre-action disclosure,' but 'the more diffuse the allegations, however, and the wider the disclosure sought, the more sceptical the court is entitled to be about the merit of the exercise.'

Wider application

The approach appears to be of wide application '“ going beyond litigation to adjudication in the construction industry. In 2011 the Technology and Construction Court dismissed an application for pre-action disclosure on the basis that the applicant failed to prove that there was a realistic prospect that proceedings would be brought against the potential defendant. Akenhead J stated in PHD Modular Access Services Ltd v Seele GmbH [2011] EWHC 2210 (TCC) that 'it is important that parties who are adjudicating, who have adjudicated or who are thinking about adjudicating do not see CPR part 31.16 as some sort of procedural support and a tactical weapon for the purposes of adjudication'.

Similar sentiments were expressed in a recent professional negligence claim, West Bromwich Building Society v Cooke Dugan & another (2012, unreported), in which the defendant made an application for a stay of the court action pending what it claimed was outstanding pre-action disclosure. The claimant successfully defended the application on the basis that all necessary disclosure had been provided and the defendants appeared to be fishing for documents which went beyond what was necessary for the defendant to know the case it had to answer.

Reciprocal and relevant

It is clearly important for a party to a dispute to understand the case made out on either side and so there is a need for the provision of key documents pre-action. The various protocols and the practice direction all envisage this reciprocal exchange of relevant information. However, there is lacking a consensus or specific court guidance on how far a party can go to insist on their required disclosure as a pre-requisite to engaging in the dispute pre-action.