Pre-Action Disclosure

The law of several jurisdictions, including in particular the courts of England & Wales allow a potential claimant to send a letter demanding disclosure of relevant facts for a likely claim to the likely party or parties to the proceeding (CPR 31.16) and against a more limited set of potential third parties (CPR 31.17.) The purpose of requiring such disclosure is to:

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings [i.e., drive early settlements]; or

(iii) save costs.’

An application under CPR 31.16 is not available if the case has already started in court. If the party of whom disclosure is demanded refuses, an application can be made to a relevant court to compel disclosure.  However, as one pointed out:

“The pre-action disclosure procedure is not in place to enable a claimant to identify if they have a claim at all, but to assist them in further investigating a claim that is already identified and explained, to enable the parties to obtain a better understanding of each other’s position to assist in disposing of or narrowing issues before expensive litigation is embarked upon.

A court will likely consider at least the following factors in weighing whether to require disclosure:

  • Has the applicant complied with the pre-action-protocol(s);
  • Has the applicant enough information to draft a letter-before-action (pre-action letter); as required under the pre-action-protocol but
  • Still needs information to add details to its particulars of claim;
  • Is the the pre-action disclosure demanded a fishing expedition?
  • Could the applicant, practically, obtain the documents or information in any other way;
  • Is the request limited, straightforward, clear and not burdensome to comply with?
  • Does likely proceeding involve potential fraud, misrepresentation, deception or dishonesty on the part of the respondent(s).


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