Litigation, as you know, is thought to begin by one party serves the other party with a "writ" which sets out what that party has done wrong and claims damages for the wrong. Counsel draft or settle these "Particulars of Claim" which are a formal statement setting out the wrong that is alleged by the Claimant and the damages sought. This document is called a "pleading". Once being served with a set of "Particulars of Claim" the Defendant has to draft a "Defence" to the claim in which he will either admit or deny bits of what is being claimed against him. Thus a Defendant may admit that he did business with the Claimant but deny that the goods supplied were substandard. The Defendant serves the Defence on the Claimant who can decide, within a timeframe, to draft a Reply to the Defence where he may accept part of the Defence but make a rather different case on the facts. With the Reply, in straightforward litigation, the "pleadings" are said to close and the parties move on to the step of disclosing relevant documents to each other so that the issues, as crystallized in the pleadings, can be litigated at trial.
But, as I mentioned, in a lot of litigation we have a "chicken and egg problem" - you cannot draft proper pleadings until disclosure has taken place. So to deal with this situation we have a concept known as "pre-action disclosure". The rules concerning this are laid down in Rule 31(16)
Disclosure before proceedings start - Rule 31.16
(1)This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.
(2)The application must be supported by evidence.
(3)The court may make an order under this rule only where -
(a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to those proceedings;
(c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to -
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.
(4) An order under this rule must -
(a) specify the documents or the classes of documents which the respondent must disclose; and
(b) require him, when making disclosure, to specify any of those documents -
(i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to withhold inspection.
(5)Such an order may -
(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(b) specify the time and place for disclosure and inspection.
What all the above means is that if it is clear that there is a dispute between parties AND that certain documents in the possession of one of the parties will be disclosable when the litigation commences THEN it will be possible to make an application to the court to disclose these documents BEFORE the litigation has commenced (i.e before the Claimant has had to prepare and serve a set of Particulars of Claim).
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