What is Pre-Action Disclosure?

Summary

• Pre-action disclosure is a court order compelling a potential defendant to disclose certain documents before the claimant issues a claim form, and is only available where the documents sought fall within standard disclosure rules and the court is satisfied that disclosure is desirable to save costs or resolve the dispute.
• The documents sought must be relevant to the dispute, meaning the defendant intends to rely on them or they advance or are adverse to the defendant’s position, and the definition of a document is intentionally broad.
• Potential defendants who unreasonably refuse a pre-action disclosure request risk a court order and cost penalties, even if they ultimately succeed in the underlying dispute.
• This article explains pre-action disclosure and its practical implications for businesses involved in commercial disputes in England and Wales.
• LegalVision, a commercial law firm specialising in advising clients on litigation and dispute resolution, outlines the conditions for obtaining pre-action disclosure and the considerations for both parties.

Tips for Businesses

If you receive a pre-action disclosure request, assess whether the documents fall within standard disclosure rules before refusing. Unreasonable non-compliance risks a court order and cost liability. If you are seeking pre-action disclosure, engage a litigation solicitor early, as courts are likely to reject applications made without legal advice.

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On this page

• What is Disclosure?
• What is Pre-Action Disclosure? 
• Practical Considerations of Pre-Action Disclosure
• Key Takeaways 
• Frequently Asked Questions

Pre-action disclosure is a court order that compels a potential defendant to disclose certain documents before a claimant issues a claim form. Understanding how it works and its practical implications can help both parties make informed decisions before proceedings commence. This article will explain what pre-action disclosure and its practical implications are so you can plan accordingly.

What is Disclosure?

Before looking at pre-action disclosure, it is helpful to define general disclosure. Under the rules that govern court proceedings in the UK, disclosure is the process where one party — usually the defendant — informs the other party about documents that are relevant to the dispute. The other side usually inspects these documents unless privilege protects such documents. 

Disclosure is a standard part of the litigation process for complex and high-value claims, particularly those in excess of £100,000. It usually happens after the claimant issues the claim form and the defendant indicates their intention to defend the claim. The court typically convenes a case management conference, setting out the terms of disclosure. Absent an order, the documents the defendant must disclose fall under standard disclosure rules. 

What is Pre-Action Disclosure? 

As the name suggests, pre-action disclosure refers to an order obligating the party likely to be the defendant to make certain disclosures before the claimant issues the claim form. 

The applicant must satisfy four conditions to obtain a pre-action disclosure order. These are the:

1. applicant is likely to be the claimant if proceedings commence;
2. respondent is likely to be the defendant;
3. documents the applicant seeks must fall under the rules for standard disclosure; and 
4. court is satisfied that pre-action disclosure is desirable. 

It is usually quite clear when the first two conditions are satisfied. We will therefore consider the second two conditions in more detail. 

Rules for Standard Disclosure 

The documents an applicant seeks must fall under the standard disclosure rules. This is because if the dispute escalates to proceedings, the documents the applicant seeks will be disclosed in due course. 

The definition of a document is intentionally broad and covers nearly every form of information or media imaginable. 

A document is relevant if either of the three conditions are met if the:

• defendant intends to rely on it; 
• document advances the defendant’s position; or 
• document is adverse to the defendant’s position. 

The question of the ‘defendant’s control’ is usually straightforward. It also extends to documents in the control of the defendant’s agents and advisers, such as solicitors and accountants. 

Is Pre-Action Disclosure Desirable? 

When asking if pre-action disclosure is desirable, the court is essentially trying to determine if either pre-action disclosure can:

• save costs; or 
• resolve the dispute and avoid commencing proceedings. 

The court will consider its overriding objective to ensure that disputes are handled proportionate to costs. This objective also seeks to ensure that the dispute is handled fairly. 

Practical Considerations of Pre-Action Disclosure

Potential Defendant Considerations

If you are involved in pre-action communications as a potential defendant, the claimant may request you disclose certain documents before they commence proceedings. When deciding if you should comply, you should consider whether:

• the claimant has a potential claim against you; 
• the documents fall within the scope of standard disclosure; and
• any form of privilege protects the documents. 

The risk of not complying with a pre-action disclosure request is that the party applies to the court and is successful. In some cases, you may be liable for the costs of the application, though this is not always the case. However, if the court concludes you were unreasonable in fielding the requests, it is more likely to impose cost penalties. You may have to pay this even if you are ultimately successful. 

Therefore, as with most aspects of litigation, the uncertainty of involving the courts and associated risks may make compliance the better option. If you are confident in your defence, pre-action disclosure can help convince the other side to abandon their claim. 

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Potential Claimant Considerations 

If you need pre-action disclosure, you should consult with a litigation solicitor even if your application has merit. The court will likely reject your application if you do not consult a solicitor. 

Additionally, if your application is unsuccessful, you will pay the other side’s costs plus court fees. The court has strict guidelines for how any pre-action application should be made. Therefore, it is important to balance the costs and likely outcomes of pre-trial disclosure before filing your application with the court. 

Key Takeaways 

Pre-action disclosure is a particular form of disclosure. It entitles a potential claimant to obtain a court order that compels a potential defendant to disclose certain documents. The documents must fall within the sorts of documents that the defendant would disclose under a standard disclosure order. Nevertheless, there are specific practical considerations both parties should consider when evaluating pre-action disclosure. It is usually best for all parties to cooperate unless one acts unreasonably. 

If you have any questions about the disclosure process, LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced disputes lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 0808 196 8584 or visit our membership page.

LegalVision’s experienced dispute lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 0808 196 8584 or visit our membership page.

Frequently Asked Questions