No - the Supreme Sultan definitely does not give pre-action disclosure to his prospective wives Neil Hickman discusses when a court can order a pre-action disclosure or disclosure against a third party


Rule 31.16 of the Civil Procedure Rules 1998 (CPR) allows the court to order disclosure before proceedings start; rule 31.17 allows disclosure against a non-party. An application for either must be supported by written evidence.


The court can make an order in any sort of proceedings. Pre-action disclosure was formerly restricted to personal injury actions, but that limitation disappeared with the Civil Procedure (Modification of Enactments) Order 1998.



For pre-action disclosure, the court must be satisfied that the respondent is likely to be a party to proceedings. The Court of Appeal held in Black v Sumitomo [2002] 1 WLR 1562, that in this context 'likely' (to be a party) means 'may well' rather than 'more probably than not'. And the court must be satisfied that the disclosure sought would, if proceedings had begun, fall within the duty of standard disclosure set out in rule 31.6, and that disclosure is desirable to dispose of the proceedings fairly, assist the dispute to be resolved without proceedings or save costs. If so satisfied, it must then go on to consider whether, as a matter of discretion, the order should be made.



The more focused the complaint and the more limited the disclosure sought, the better the prospects of obtaining an order. A defendant who makes sensible voluntary disclosure may well avoid an order for further disclosure. In Steamship Mutual Underwriting v Baring [2004] All ER (D) 272 (Feb), pre-action disclosure was refused in a case involving allegedly negligent investment management. The nature of the loss claimed was already clear, as were the broad issues; the disclosure already made was sufficient to allow the applicants to see whether they had a viable claim.



In Merpro v Dynamic Processing [2003] All ER (D) 49 (Jan), the claimants requested voluntary disclosure on 20 November, and issued their application on 27 November.



The application failed; the court held that there was no basis for believing that the defendants would not have complied with the request for voluntary disclosure. However, in Jay v Wilder Coe [2003] All ER (D) 526 (Jul), disclosure of accountants' files and working papers was ordered. While there was an onus on a claimant to prove his case, if there were a clear answer, observed Mr Justice Tugendhat tartly, the respondents could have given it.



In Bermuda International Securities v KPMG [2001] All ER(D) 337 (Feb), the Court of Appeal expressly declined to lay down guidelines in the early stages of the life of a new rule, but did hold that the court had to be clear what the issues in the litigation were likely to be and then form a view as to whether the case was one in which pre-action disclosure was desirable for one or all of the reasons set out in rule 31.16(3)(d).



This does not mean the court should seek to decide the issues before considering whether to order disclosure. In Rose v LynxExpress [2004] EWCA Civ 447, the judge at first instance had resolved a crucial question of construction 'only insofar as it is relevant to the application', and, having resolved it against the claimant, dismissed his application. The Court of Appeal held that he was wrong to do so, saying that it will normally be sufficient for the substantive claim to be properly arguable and to have a real prospect of success.



The power to order disclosure against a third party under rule 31.17 has developed from the principles in Norwich Pharmacal v Customs and Excise [1974] AC 133, but has moved beyond that case. The court may only make an order if the documents sought are likely to support the case of one party or adversely affect the case of another, and disclosure is necessary to dispose of the claim fairly, or save costs.



In Norwich Pharmacal, the claimant could establish the wrong but could not identify the wrongdoer. In Carlton v VDC [2003] All ER (D) 290 (Mar), the claimant knew who the wrongdoer was, but did not have sufficient evidence to start an action. Mr Justice Jacob granted disclosure against VDC, which had contracted with the suspected wrongdoer.



The rights of others may be affected by an order for third-party disclosure. Disclosure may be made subject to conditions, as in Frankson v Home Office [2003] 1 WLR 1952, where in an action for assault brought by prisoners, the police were ordered to disclose statements made in confidence by prison officers.



In A v X & B [2004] All ER (D) 517 (Mar), the court was asked to order disclosure of the confidential medical records of the claimant's brother. It was argued that the claimant's psychiatric problems were not caused by his accident, but were of genetic origin. Mr Justice Morland observed that there was no reported case where disclosure of the medical records of a non-party had been ordered.



Disclosure would have infringed the brother's rights under article 8 of the European Convention on Human Rights, and was not necessary in any event for a fair disposal of the claim. The burden rested on the claimant to prove his claim, and there was other material already available to the defendant with which to seek to undermine it.



The general rule as to costs - applicable to both rules 31.16 and 31.17 - is stated in rule 48.1. The court will award the respondent his costs of the application, and of complying with it. However, the court may make a different order. In Bermuda International, the order was costs in the case (if there ultimately was one), otherwise no order.



In Totalise v Motley Fool [2003] 2 All ER 872, the Court of Appeal held that although there might be cases where the successful applicant should not pay the costs of the disclosing party, they did not include cases where the disclosing party had a genuine doubt that the applicant was entitled to it; or the party was, or might be, under an obligation not to reveal the information; or the party could be subject to proceedings or might suffer damage if disclosure was voluntary; or the disclosure might infringe a legitimate interest of another. It would be different if a disclosing party supported or was implicated in a crime or tort, or sought to obstruct justice being done. In an extreme case, no doubt the respondent could even find himself ordered to pay the applicant's costs forthwith.



District Judge Neil Hickman sits at Milton Keynes County Court