Theo Huckle QC & Cathrine Grubb examine pre-action disclosure & the application of CPR 31.16
In December, the Court of Appeal handed down its judgment in the case of Smith v Secretary of State for the Environment and Climate Change [2013] EWCA Civ 1585, which provides clear and useful guidance on CPR r 31.16.
An applicant for pre-action disclosure has to satisfy the court that:
- The applicant and respondent are likely to be a party to subsequent proceedings (CPR r 31.16 (3)(a) and (b)).
- If proceedings were started the respondent’s duty by way of standard disclosure would extend to the (class of) documents that the applicant seeks (CPR r 31.16 (3)(c)).
- Disclosure before proceedings is desirable in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings and save costs (CPR r 31.16(3)(d)).
Two stage approach
CPR 31.16 requires a two-stage approach: The first stage is to establish whether these jurisdictional thresholds prescribed by heads (a)-(d) are satisfied. If so, the court considers at the second stage whether, as a matter
