4.6 Specific disclosure, specific inspection and pre-action disclosure

Question 1

Which Rule is used to obtain specific disclosure or specific inspection from the other party?

Answer 1

CPR 31.12

Question 2

Which Rule is used to obtain disclosure or inspection from a third party after proceedings have started?

Answer 2

CPR 31.17

Question 3

Which Rule is used to obtain disclosure or inspection from the other party before proceedings have started?

Answer 3

CPR 31.16

Question 4

Which Rule is used to obtain disclosure or inspection from a third party after proceedings have started?

Answer 4

CPR 31.18 and Norwich Pharmacal Orders

Question 5

When can application for specific disclosure or inspection be made?

Answer 5

Commentary 31.12.1.1
At any time after proceedings have begun. Typically at a time when the court is due to give directions and after standard disclosure.

31.12.2 - Dayman v Canyon Holdings Ltd (2006) unrep Ch D
The court may make an order for specific disclosure at any time.

Question 6

Is specific disclosure obligatory or is it a discretionary power?

Answer 6

CPR 31.12(1) [discretionary]

The court may make an order for specific disclosure or specific inspection.

Question 7

What is specific disclosure?

Answer 7

CPR 31.12(2)
An order for specific disclosure is an order that a party must do one or more of the following things -
(a)
disclose documents or classes of documents specified in the order;
(b)
carry out a search to the extent stated in the order;
(c)
disclose any documents located as a result of that search.

Question 8

Which Practice Directions deal with specific disclosure?

Answer 8

31A PD 5.1-5.5

Question 9

What must the court take account of when deciding an application for specific disclosure?

Answer 9

31A PD 5.4
In deciding whether or not to make an order for specific disclosure the court will take into account all the circumstances of the case and, in particular, the overriding objective described in Part 1.

But if the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclose … the court will usually make such order as is necessary to ensure that those obligations are properly complied with.

Question 10

When might the court order specific disclosure?

Answer 10

31A PD 5.4

1. The respondent has failed to comply with directions to disclose;
2. The respondent has failed to comply adequately with directions to disclose;

Digicel (St Lucia) v Cable & Wireless PLC [2008] EWHC 2522
3. The respondent has disclosed adequately BUT further disclosure may lead to a train of inquiry with the consequence of producing documents which advance the applicant’s case or damage the respondent’s case.

Question 11

What must the application notice for specific disclosure contain?

Answer 11

31A PD
5.2
The application notice must specify the order that the applicant intends to ask the court to make and must be supported by evidence…
5.3
The grounds on which the order is sought may be set out in the application notice itself but if not there set out must be set out in evidence filed in support of the application. [Usually a witness statement.]

Question 12

What happens if an application for specific disclosure / inspection is imprecise?

Answer 12

Mohamed Taranissi v BBC [2008] EWHC 2486 (QB)

The court will not allow a ‘fishing expedition’. If the application is too imprecise, it will fail.

Question 13

What is specific inspection?

Answer 13

CPR 31.12(3)
An order for specific inspection is an order that a party permit inspection of a document [withheld because of disproportionality].

Question 14

Under which provision can a party apply to challenge a disclosing party’s decision to withhold because of privilege?

Answer 14

CPR 31.19(5)

Question 15

What four conditions must be in place for an application for pre-action disclosure to succeed?

Answer 15

CPR 31.16(3)
The court may make an order under this rule only where—
(a)
the respondent is likely to be a party to subsequent proceedings;
(b)
the applicant is also likely to be a party to those proceedings;
(c)
if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d)
disclosure before proceedings have started is desirable in order to—
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.

Question 16

Is the court’s power to order pre-action disclosure obligatory or discretionary?

Answer 16

CPR 31.16(3) [discretionary]
The court may make an order under this rule …

[To persuade the court you will often have to refer to the overriding objective.]

Question 17

What is the test to establish that the respondent to a pre-action disclosure test is “likely to be a party to subsequent proceedings” as per CPR 31.16(3)(b)?

Answer 17

Black v Sumitomo Corporation [2001] EWCA Civ 1819
1.
Proceedings need not be likely, it is only necessary that if proceedings are initiated, it is likely that that party would be a party to them;
2.
“Likely” means “may well” (not “more probable than not”).

Question 18

What are the two stages the court must follow in deciding applications for pre-action disclosure?

Answer 18

1.
Are the statutory requirements in CPR 31.16(3) met?
2.
Should the court exercise its discretion?

Question 19

How does the court decide whether documents requested for pre-action disclosure would be available for standard disclosure in subsequent proceedings, as per CPR 31.16(3)(c)?

Answer 19

Bermuda International Securities Ltd v KPMG [2001] EWCA Civ 269
Disclosure can only take place in circumstances where -
1.
the issues in dispute have been sufficiently identified and
2.
could only extend to those documents which were liable to be disclosed at the stage in proceedings when the general obligation of disclosure arose.

Question 20

What is the role of the merits of the case in the court’s discretion when deciding whether to order pre-action disclosure?

Answer 20

Rose v Lynx Express Ltd [2004] EWCA Civ 447
1.
Courts should hesitate to try to determine the substantive issues, but
2.
The applicant should be able to show that its claim has a prima facie case.