Pre-Action Disclosure Guide

mariam-abu-hussein
Mariam Abu HusseinLegal Assessment Specialist @ Lawhive
Updated on 25th October 2023

If you’re involved in a legal dispute, you might have come across the term pre-action disclosure.

If you’re wondering what on earth this is and what it means for your situation, in this guide, we’ll break down pre-action disclosure so you know what to expect if you encounter it. We’ll cover:

  • What is pre-action disclosure

  • How to get a pre-action disclosure order

  • The rules for standard disclosure

  • How the courts decide if pre-action disclosure is desirable

  • Does a defendant have to comply with pre-action disclosure

  • Advice for potential applicants/claimants

  • How to get legal help and advice for pre-action disclosure

pre-action-disclosure

In UK law, disclosure is when one side in a legal dispute shares relevant documents with the other side, unless those documents are protected by something called privilege.

Disclosure is a standard part of the legal process, and usually happens for more complex and valuable claims over £100,000.

What is pre-action disclosure?

Pre-action disclosure is when one party asks the other to provide certain documents or information related to a case before officially filing a claim form.

Pre-action disclosure is part of the pre-action protocol and can help one or both parties understand the facts and the strength of the case. Sometimes, it can lead to a settlement agreement before going to court, which can be cheaper in the long run.

How to get a pre-action disclosure order

To get a pre-action disclosure, the person applying for it (the applicant) should make sure:

  • They are likely to be the one making the claim if legal proceedings start

  • The person they’re asking for disclosure from (the respondent) is likely to be the defendant if a claim is made

  • The documents the applicant is looking for meet the rules for standard disclosure in court proceedings

  • The court agrees that pre-action disclosure is a good idea

What are the rules for standard disclosure?

The documents an applicant requests to see in pre-action disclosure must meet the rules for standard disclosure. This is because, if the dispute ends up in court, those documents will be disclosed eventually as part of the legal process.

The rules for standard disclosure are:

  • Documents must be related to the dispute

  • The defendant or their advisers (i.e. solicitor) should have these documents in their possession or under their management.

It’s important to note that “documents” in this case is a broad term that covers almost any kind of information or material you can think of, not just paperwork.

A document is relevant if it falls into one of these categories:

  1. The defendant plans to rely on it for their case

  2. The document supports the defendant’s side of the case

  3. The document goes against the defendant's case

How does the court decide if pre-action disclosure is desirable?

When the court decides if pre-action disclosure is a good idea, it’s asking two essential questions:

  1. Will pre-action disclosure help save money?

  2. Can pre-action disclosure help settle the dispute and avoid a full-blown legal case?

The court’s primary goal is to make sure disputes are handled fairly and they don’t end up costing way more than they should.

If the answer to both of the above questions is yes, a court is likely to decide that pre-action disclosure is desirable.

Do potential defendants have to comply with pre-action disclosure?

If you have received a pre-action disclosure request, you can refuse it. However there are a few consequences of refusal.

The biggest consequence of refusing pre-action disclosure is that if you refuse the pre-action disclosure request and the other party takes the matter to court and succeeds, there’s a risk you might have to cover the costs of the application. This doesn’t always happen, but it can, especially if the court thinks you were being unreasonable in refusing the request. It can even happen if you win the case.

Considering the risk, going along with the request might be the safest choice.

In some cases pre-action disclosure can even convince the other party to drop their claim if you have a strong defence.

If you are wondering if you should comply with a pre-action disclosure request, it’s wise to seek help from an expert litigation solicitor who can provide advice relevant to your case. They will review the potential claim against you and the pre-action request and help you make an informed decision based on the facts.

Pre-Action Orders: Advice for Potential Claimants

If you’re considering issuing a pre-action disclosure request, you should take some time to assess the strength of your case and the reason for seeking disclosure.

If you do make a claim and lose, you will be responsible for paying the legal costs and court fees of the defendant.

A litigation solicitor is best placed to help you decide if an application to the court is worth the costs and potential outcome of your case.

Examples of unsuccessful pre-action disclosure applications

Carillion Plc v KPMG (2020)

In a case involving Carillion, a construction company, and its former auditors, KPMG, Carillion wanted access to KPMG's working papers before they launched a negligence lawsuit against them, potentially seeking hundreds of millions of pounds in damages.

Carillion argued that KPMG didn't catch errors in Carillion's financial statements. They requested pre-action disclosure for specific parts of the financial statements where they believed KPMG's auditing had negligent, arguing that they needed this to better understand the issues and create a more focused legal compliant.

However, the court rejected Carillion's request. They decided that Carillion already had enough evidence and expert opinions to out line their case and pre-action disclosure was unnecessary and would likely prolong the process before any legal action began.

Hunt vs Caddick (Mill Harbour) Ltd

In this case, the claimant suspected that the other party had received extra benefits during a settlement agreement. They believed these benefits should have triggered an additional payment. So, they applied for pre-action disclosure.

The application was denied because there wasn't enough solid evidence to support the claim. Instead, the court decided the claimant was actually searching for evidence without a strong basis. The judge also noted that most of the document the applicant wanted were probably privileged so wouldn't be disclosed even if the application had been approved.

Kas No. 8 vs Estera Trust

In this case, the claimant had been negotiating with the other party to buy a hotel. However, they began to doubt whether the other party was actually able or willing to sell. They claimed they had spent a lot of money for no good reason.

They asked for pre-action disclosure to access correspondence between them and the other party.

The court rejected the request on the basis that the request was more of a guess and that it placed a heavy burden on the other party for something that might not be necessary. The judge argued that the claimant could always update their legal case later on if needs be.

Examples of successful pre-action disclosure applications

EUI Limited v Charles & Others

In this case, there were seven pre-action disclosure applications made by EUI Limited for bank statements and wage slips of the claimants.

EUI Limited argued that:

  1. The documents they wanted were directly relevant to a significant financial issue in each case;

  2. They couldn't assess the claimants' financial situation without the information;

  3. Getting the documents wouldn't be hard work;

  4. Disclosure would help them make informed pre-action offers.

The court agreed with EUI Limited and granted the pre-action disclosure. They believed that it made sense to have access to these financial documents because they were important for assessing the case and potentially bringing about a fast resolution instead of taking the matter to court.

To make an application for pre-action disclosure, you must have strong evidence for it and make sure all the conditions are met to avoid having to pay the costs of the other side if they comply.

If you are looking to make an application like this, get in touch with us via our online form to speak to a solicitor about the strength of your case. Similarly, if you are faced with a pre-application request, our expert litigation solicitors can help you understand if compliance is the best way forward based on the facts of your situation.

Share on:

Get legal help the hassle-free way

We have expert solicitors ready to resolve any type of legal issue in the UK.

Remove the uncertainty and hassle by letting our solicitors do the heavy lifting for you.

Get Legal Help

Takes less than 5 mins

We pride ourselves on helping consumers and small businesses get greater access to their legal rights.

Lawhive is your gateway to affordable, fast legal help in the UK. Lawhive uses licensed solicitors you can connect with online for up to 50% of the cost of a high-street law firm.

Lawhive Ltd is not a law firm and does not provide any legal advice. Our network includes our affiliate company, Lawhive Legal Ltd. Lawhive Legal Ltd is authorised and regulated by the Solicitors Regulation Authority with ID number 8003766 and is a company registered in England & Wales, Company No. 14651095.

For information on how to make a complaint about an experience you have had with our SRA regulated affiliate company Lawhive Legal Ltd click here.

Lawhive Legal Ltd is a separate company from Lawhive Ltd. Please read our Terms for more information.

© 2024 Lawhive
86-90 Paul Street, London EC2A 4NE

Version: 3e064f3