There may be situations in which a potential claimant feels it would beneficial to see documents held by a potential defendant before commencing proceedings. How can he obtain these? Does he need to show an arguable case in order to do so?
Background
Once proceedings have been issued the Civil Procedure Rules require a defendant to disclose relevant documents as part of the preparations for trial. However, there is no automatic obligation on a defendant to disclose those documents before proceedings have been issued (though often it would be wise to do so if the claimant has written Letter of Claim and there are good grounds for defending any action that is being threatened).
Applying to the court
The Civil Procedure Rules allow a claimant to make an application to the court before issuing a detailed claim in order to obtain copies of documents from a defendant. If he does so the court may make an order for disclosure where
the respondent is likely to be a party to subsequent proceedings;
the applicant is also like to be a party to those proceedings;
if proceedings had started the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents of which the applicant seeks disclosure; and
disclosure before proceedings have started is desirable in order to
dispose fairly of the anticipated proceedings;
assist the dispute to be resolved without proceedings; or
save costs.
Other factors
Recent cases have given rise to some confusion as to the precise circumstances in which court should make such an order. The issue is centred around the question as to whether or not it was necessary for an applicant to show that he had an arguable case. In these earlier cases, it was suggested that an applicant who had no arguable case against a respondent at the point at which he made the application would not be entitled to succeed in his application for what is known as “pre-action disclosure”.
The recent case of Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585 has established that it is not necessary for an applicant to show that he has an arguable case; he simply needs to satisfy the criteria set out above.