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Pre-action disclosure
Smith v Secretary of State for Energy [2013] UKCA 1585
Summary
  • The Court of Appeal have addressed the test for pre-action disclosure.
  • There had been some confusion within the authorities.
  • This case clarifies the threshold test.
  • Namely, may the court make the order, not ought it.
  • C does not have to establish some minimal level of arguable claim.
  • But the court will probably decline discretion where there is no viable claim.
The Facts

C, now age 65, was employed by the National Coal Board.  He regularly worked underground.  He believed that the Board did not adequately protect him from noise underground.  In particular, he was never provided with any hearing protection.  He believed that his hearing loss was worse than would otherwise be expected, given his age.
C's solicitors wrote a letter of claim, in accordance with the Pre-Action Protocol for Disease and Illness.  The letter included a request for disclosure of C's work medical records and personnel records.  These documents are covered by the Protocol.  C also made a much more extensive request for disclosure of documents which might help to establish the noise levels at the various pits at which he had worked.  Also, documents which might show the Board's knowledge of those noise levels and the consequent risks.  That request was refused. 
C made an application for pre-action disclosure.  The DJ ordered disclosure of several, though not all, of the categories of documents sought namely: noise tests, D's consideration of the noise problem, notices, instructions and safety committee minutes.
D appealed, and the appeal was allowed (ie the disclosure application was dismissed).  The court relied upon Kneale v Barclays Bank [2010] EWHC 1900 (Comm).  C had to show some kind of prima facie case which was more than a speculative punt.


CPR 31.16

Nobody will thank me for citing the whole Rule.  There is a two stage test.  The first stage is may the court make the order (eg likely to be a party, help resolve the dispute, save costs etc).  If the first stage is satisfied, the court then considers whether the order should be made as a matter of discretion.


Appeal

Held:  There is no requirement to establish a minimum level threshold; such as an arguable, or prima facie, case .  Where Kneale suggested otherwise, it was wrong.  All that had to be shown was that it is likely that the respondent would be a party if proceedings were commenced. 

Practical Approach

I doubt whether the prima facie case/fishing expedition argument is hereby ended. Where there is no prospect of a viable claim, the Court can still refuse to exercise its discretion.

The more focused the claim and the more limited the disclosure sought, the easier it is for the court to exercise its discretion in favour of pre-action disclosure. Even where the claim might seem somewhat speculative or the request is arguably a fishing exercise.

The statement in support of the application should clearly address the first stage of CPR 31.16 (likely to be a party, costs saving etc).

Stuart Frampton
stuartframpton@devonchambers.co.uk
Stuart specialises in personal injury. Acting for claimants and defendants, Stuart has a range of experience in all aspects of PI.
Our Personal Injury Team:
Stuart Frampton | Russell James | Scott Horner
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There was some previous confusion in the authorites.