Conditions for pre-action disclosure (CPR 31.16)
Kenji Watanabe's bakery in Leeds suffered a fire which he believes was caused by a commercial oven supplied and serviced by Thermacore Ltd. Kenji intends to sue Thermacore for breach of contract and negligence, but Thermacore has refused his request for copies of its service and fault records for the oven. Kenji's solicitor considers applying to the court for an order for disclosure of those records before issuing proceedings.
Which of the following must the court be satisfied of before it can order pre-action disclosure?
Choose one answer to see the reasoning.
Worked answer
Correct answer B: That Kenji and Thermacore are likely parties to proceedings, the records fall within standard disclosure, and early disclosure is desirable to dispose fairly of the claim, assist settlement or save costs.
THE RULE TO REMEMBER
Pre-action disclosure requires both parties to be likely parties, the documents to be within standard disclosure, and early disclosure to be desirable for fair disposal, settlement or saving costs (CPR 31.16(3)).
Conditions for pre-action disclosure (CPR 31.16)
An application for disclosure before proceedings have started is made under s 33 of the Senior Courts Act 1981 or s 52 of the County Courts Act 1984 and is governed by CPR 31.16. It must be supported by evidence (CPR 31.16(2)). By CPR 31.16(3), the court may make an order only where the respondent is likely to be a party to subsequent proceedings, the applicant is also likely to be a party, the documents sought would fall within the respondent's duty of standard disclosure under CPR 31.6 if proceedings had started, and disclosure before proceedings is desirable in order to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings, or save costs. Kenji and Thermacore are the obvious likely parties, and the service and fault records are likely to support or adversely affect a party's case. Even if the conditions are met, the court still has a discretion whether to order disclosure.
Why A is wrong: CPR 31.16(3) does not require a strong prima facie case on the merits.
Why C is wrong: CPR 31.16 exists specifically for disclosure before proceedings have started.
Why D is wrong: Disclosure against non-parties is governed by CPR 31.17; CPR 31.16 requires the respondent to be a likely party.
Why E is wrong: Pre-action disclosure is no longer limited to personal injury and death claims; CPR 31.16 applies to any type of claim.
A little more practice done.
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