Pre-Action Disclosure: A curse or a gift?

Pre Action disclosure applications are a common way for a Claimant to force a Defendant to show their hand, before litigation, and also recover some costs early on. The rule is intended to narrow the issues between the parties but it can be a used as a fishing expedition by the Claimant. It is therefore important to consider whether the disclosure request is justified.

Paragraph 7.1.1. of the Pre Action Protocol for Personal Injury Claims states:

“The aim of early disclosure of documents by the defendant is not to encourage ‘fishing expeditions’ by the claimant, but to promote an early exchange of relevant information to help in clarifying or resolving issues in dispute. The claimant’s solicitor can assist by identifying in the Letter of Claim or in a subsequent letter the particular categories of documents which they consider are relevant and why, with a brief explanation of their purported relevance if necessary.” (own emphasis added).

When faced with a Letter of Claim asking for blanket disclosure and threatening an application it is easy to overcompensate and disclose everything.  If an incident involves a private residence then disclosure is not likely to be extensive or time consuming. However, when representing commercial or public sector clients disclosure can be a very long winded affair.

There are several ways to limit disclosure:

• Agree a disclosure window. For example, limit inspection records for a slip or trip claim to no more than 1 year pre-accident
• Ask the Claimant to be specific in their request – what do they want and why do they want it. Consider whether their request is reasonable.
• Agree to a handful of search terms for electronic disclosure. Searching emails or servers can be an uphill struggle, but careful consideration of useful search terms will substantial limit disclosure.
• Be confident. Do not be afraid to say no if there is a no useful purpose for disclosing a requested document.

It is also useful to remember that an Order for pre-action disclosure may only be made when the applicant and respondent are likely to be parties in the proceedings (CPR.31.16), and that there is a real prospect that proceedings will follow.

If you would like to discuss this topic in more detail, please contact Daisy McConnell or Georgina Shorland.