Pre-action disclosure
Disputes & Litigation

Ordinarily, parties to civil litigation must wait for disclosure in UK litigation to inspect documents which are relevant to the dispute, which may be months after the commencement of the litigation. Pre-Action disclosure provides a means for the claimant to obtain copies of documents from the intended defendant to properly assess whether or not proceedings should be commenced.

Courts in the UK have the power to grant orders allowing intending claimants to inspect documents and property prior to the commencement of civil litigation against the intended defendant and third parties. Courts have jurisdiction to make flexible orders that may require the recipient of the order to:

1. Disclose whether or not they are in possession or control of documents falling within a named class;
2. Produce those documents to the applicant.

The difference between the first and second power above is that a document is disclosed when its existence is made known to the other side, as opposed to producing the document.

A court will require good grounds for making an order, and may be prepared to exercise its discretion to make a pre-action disclosure order in circumstances where:

1. The intending claimant demonstrates that they have a reasonable basis for the claim, and reasonable prospects of success on the substantive claim. The claimant does not however need to be committed to commencing litigation
2. The recipient of the order must be likely to be a party
3. It is likely that the defendant has documents that would be relevant to the proceedings in their possession or control, and those documents would be central or key documents to determine the disputes between the parties. The documents requested must adversely affect the position of either the claimant or the defendant;
4. the order for disclosure would avert the need for litigation, save costs or fairly dispose of the proceedings;
5. the disclosure is not against the public interest, oppressive to the receiving party or otherwise not in the interests of justice.

Ideally, the claimant will be in a position to specify the classes of documents required to be produced, and file draft particulars of claim with an application for pre-action disclosure. The draft particulars of claim, drawn based on the then knowledge of the claimant will serve to inform the court of the nature of the claim and the bases upon which it is brought. This serves to show that the claimant does have a real prospect of success, and takes the application and production of the documents seriously. The respondent to the application, must during the course of complying with the order not only specify the documents in its possession and control falling within the named classes of documents, but also documents relevant and no longer in its control, and maintains the right to refuse to disclose privileged documents.

In civil litigation, persons applying for such orders are usually ordered to pay the costs of the respondent to comply with the order at the outset, but may be recovered in the form of damages at the conclusion of the final hearing.