It is pretty rare for there to be pre-action disclosure because of a historic reticence of judges who want to stop people just asking for documents to see if they have a case against a potential defendant. But the rules are changing and there are a series of cases which deal with the matter more favourably:
Hands v Morrison Construction Services Ltd [2006] Adj.L.R. 06/16, reported as [2006] EWHC 2018 (Ch) and picked up by the e-disclosure legal expert Chris Dale
“The desideratum in r 31.16(3)(d)(1), that is the fair disposal of the proceedings, is addressed to the question whether early disclosure, rather than disclosure at the usual time, will add fairness. That may be achieved not merely to give an opportunity to plead an otherwise unpleadable case but where it enables the Statement of Case to be better focused so avoiding the cost, delay and disruption which may otherwise be caused by amendment after normal disclosure, for example, leading to further consequential amendments and a yet further round of disclosure”
Bermuda International Securities Ltd v KPMG (2001) 1 Lloyd's Rep, Professional Negligence, 392 [A Court of Appeal decision cited in Hands v Morrison Construction Services Ltd [2006] Adj.L.R. 06/16, reported as [2006] EWHC 2018]
Black v Sumitomo Corporation [2001] EWCA Civ 1819, [2003] 3 All ER643, [2002] 1 WLR 1562
Rix LJ's judgment,at para 95: “In my judgment, the more focused the complaint and the more limited the disclosure sought in that connection, the easier it is for the court to exercise its discretion in favour of pre-action disclosure, even where the complaint might seem somewhat speculative or the request might be argued to constitute a mere fishing exercise. In appropriate circumstances, where the jurisdictional thresholds have been crossed, the court might be entitled to take the view that transparency was what the interests of justice and proportionality most required. The more diffuse the allegations, however, and the wider the disclosure sought, the more sceptical the court is entitled to be about the merit of the exercise.”
Steamship Mutual v Baring Asset Management Ltd 2004 EWHC 202 (Comm)
at para 25: “Let me now stand back from the authorities and consider the operation of CPR r 31.16 in the context of TCC that is Technology and Construction Court litigation. IT projects and construction projects typically generate extensive documentation. In many TCC cases, disclosure is a labour-intensive exercise and a major head of costs. Therefore, disclosure before the proper time is not something which should be lightly ordered. On the other hand, the court encourages the early and candid exchange of information in the hope that this will promote settlement before excessive costs are incurred. Alternatively, it is hoped that the parties may at least narrow the issues between them. This is part of the philosophy which underlies the Pre-action Protocol for Construction and Engineering Disputes. It should be noted that this is the only pre- action protocol which requires a meeting between the parties before they resort to litigation.”
All these cases support the fact that courts will entertain pre-action disclosure orders provided that they are formulated in a narrow, focussed manner. But it seems to me to be sensible to link a narrowly focussed pre-disclosure application to a widely drawn anti-spoilation application.
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