Pre-Action Disclosure

[inthewind]

I'm looking to make a Pre-Action Disclosure request to a company that I believe I have a case against. It's not a 'fishing expedition' and I have a number of emails that give me 'reasonable doubt' as to their compliance with an agreement between us.

A few questions:

Do I need a solicitor or can I make the request myself?
Does the request need to go via the courts or can I send it directly to them asking for disclosure?
What are the pro's con's of a pre-action disclosure? I appreciate I may have to pay their cost for disclosure, but I'm really only looking for them to disclose one or two reports. Something they could get one person to do in an hour or so. If they try to make unreasonable charges for the disclosure, what would happen? Would they have to have to tell me how much it would cost first or could they just do it and charge me once done?

Ideally, I don't want this in court as I'm pretty sure that they'll disclose info that will show they breached the agreement. This would then give me the upper hand in negotiating an out of court settlement.

I'd be very grateful for any help!

[charitynjw]

Re: Pre-Action Disclosure

Hi inthewind, & welcome to Legal Beagles.

In your opinion, what 'track' would an action be allocated to?

[inthewind]

Re: Pre-Action Disclosure

Thanks, the claim would be worth over £10k, possibility up to £30k.

So not small claims court, but otherwise not sure which track it would be.

[pt2537]

Re: Pre-Action Disclosure

Pre action discovery per CPR 31.16 is always a risk, however costs may be arguable in your favour, there is case law which i believe is still good law that may assist you in such an application.

This is an extract from a witness statement in support of discovery that i did, i posted purely to give guidance on the case authorities and would urge you to do some research first.

Case law

1. The documents requested go directly to heart of the claimant’s case. In accordance with the guidance given by Lord Justice Rix in Black and others v Sumitomo and others [2001] EWCA Civ 1819 (and in particular para. 72 of his judgment) care has been taken to ensure that the disclosure request is narrow and that the documents requested are determinative of the dispute between the parties. At paragraph 88 of his judgment Rix LJ states that when determining whether to grant an application for pre-action discovery the court will consider “the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure”. These points have been addressed throughout this statement and will not be repeated here save that it is extremely difficult for the Claimant to prepare a meaningful particulars of claim without the documents requested.

SES Contracting Limited and others v UK Coal Plc and other [2007] EWCA Civ 791 addressed the issue of costs in pre-action discovery applications. Lord Justice Moore-Bick decided on that occasion that both parties should bear their own costs of the application. However, both parties were commercial organisations. In the present application the Claimant is an individual seeking disclosure against a large financial institution. In SES Contracting there was no breach of a pre-action protocol. In the present case the Defendant has broken the pre-action protocol practice direction in that the Defendant has failed to comply with paragraphs 1.2; 4.2(6); 6.1; 6.2; 7.1(2) and Annex A paragraph 3.1. Paragraphs 4.2 states the court will expect parties to have complied with this Practice Direction, paragraph 4.3 details the assessment of compliance with the protocol and under paragraph 4.4 of the protocol examples of non compliance are given, in particular the court attention is drawn to paragraph 4.4(2) and 4.4(4) of the protocol. Paragraph 4.6 of the protocol invite the court to take such breaches into account when making orders for costs. An award of costs against the Defendant is likely to discourage a failure to comply with the protocol in future thereby obviating the need for an application to the court. An award of costs will also satisfy paragraph 4.6(2) of the pre-action protocol in placing the Claimant in no worse a position than he would have been in had the protocol been complied with. Any other order would place the Claimant in a worse position due to the Defendants non compliance.

[inthewind]

Re: Pre-Action Disclosure

I'm not overly concerned with the cost of disclosure as it's just one report I'm after and I know it wouldn't take them long to produce.

My worry is that they'll try their luck by trying to over charge for it to put me off requesting the information.

It's a business to business request (if that makes any difference).

[pt2537]

Re: Pre-Action Disclosure

I'm not overly concerned with the cost of disclosure as it's just one report I'm after and I know it wouldn't take them long to produce.

My worry is that they'll try their luck by trying to over charge for it to put me off requesting the information.

It's a business to business request (if that makes any difference).

Its not just the short costs of searching as i understand it, its the complete costs of the application, so you could conceivably cop for £2500-3k easy

[inthewind]

Re: Pre-Action Disclosure

So I actually have to apply for disclosure via the court as opposed to just make a request directly to the company?

[pt2537]

Re: Pre-Action Disclosure

No, you write to the company first, and ask them for the documents you have identified in their possession and ask for a copy to be provided to you.

If they refuse then make the application, you can then exhibit their refusal to the application

[inthewind]

Re: Pre-Action Disclosure

Thanks, that's what I was hoping for.

I'm guessing that if they refuse, I go to court, the court agrees and I eventually win the case that the cost of disclosure would also be awarded (or at least considered, based on the claim needing the info from the disclosure request).

Sorry to bug you all, I'm due to see a solicitor for a free consultation about this in a few weeks. After that, they want £220 p/h + VAT to deal with the case, so I'm trying to understand as much as possible before I commit to them taking any action and costs rocketing.

I do genuinely believe that the disclosure should be enough to make a case against them, and if they have any sense they would settle out of court.

[pt2537]

Re: Pre-Action Disclosure

£220 plus VAT?

Yikes, thats more than i charge on consumer credit matters, for basic issues like this id say a grade C fee earner would be suitable at around £160 per hour to deal with this matter.

£220 seems on the high side in my opinion

[inthewind]

Re: Pre-Action Disclosure

It's regarding a franchise agreement and he's a franchise specialist. I figured it was high, but was hoping he knows his onions and was worth it!

[pt2537]

Re: Pre-Action Disclosure

It's regarding a franchise agreement and he's a franchise specialist. I figured it was high, but was hoping he knows his onions and was worth it!

i see, horses for courses as they say, is it a £220 per hour job to get the disclosure? thats the question, perhaps he would have a junior to deal with that side thus keeping your costs down, and then he could deal with it thereafter? just a thought for you to ponder.

[inthewind]

Re: Pre-Action Disclosure

Yes, was actually hoping to make the request myself, if they refuse, I make an application via the courts (using solicitor).

If they oblige, I use solicitor to put together an out of court settlement that suits me (including his costs).

If they refuse, go to court (hopefully win) and get whatever is awarded to me!

That's the plan in my layman's head anyway!

[inthewind]

Re: Pre-Action Disclosure

Can anyone shed any light on the no win no fee system. I know there was a change recently (ish) to stop the where there's a blame, there's a claim culture, but if I do need to take them to court, I don't have £20k to make a claim, nor the money to cover their costs if I lose.

[figaro123]

Re: Pre-Action Disclosure

I have a case management hearing in september, I intend asking the court to order disclosure of documents from the other side. Are you presently in litigation or are u just considering it