An application for pre-action disclosure should be considered under CPR 31.16(3)(a) where there are documents in control of persons likely to become a party to the proceedings or under CPR 31.16(3)(c) if the claim has been issued and the documents would be required to be disclosed under standard disclosure.
Pre-action disclosure should be considered where you have requested copies of the relevant documents but they have not been provided and it is a method of determining whether the claim is worth issuing. It can also assist with ADR or mediation etc prior to issuing a claim which in turn can save on costs. However, pre-action disclosure is only available against potential parties to the potential claim.
Any application for pre-action disclosure under 31.16 should be accompanied by a Witness Statement, details of the documents required and reasons why they are required.
Disclosure is where parties to a claim list the documents which exist or have existed which they intend to rely on in court and which assist or harm the case of any of the parties to the dispute. Once the list of documents is provided the other side has the right to inspect the disclosed documents.
Privileged documents must also be disclosed but may not be inspected. Each party is required to carry out a reasonable search for documents within each parties control which in turn should be proportionate to the value of the claim. Documents include all media on which information is recorded.
The list of documents (usually Form N265) should contain a disclosure statement. It should list documents which can be inspected, documents which cannot be inspected and documents which are no longer in the parties control. A disclosure statement should state the extent of the search for the documents confirm that the client understands his disclosure obligations, and has complied with his disclosure obligations.
By Michael Coyle at Lawdit Solicitors.