PRE-ACTION DISCLOSURE: THE APPROPRIATE TEST CONSIDERED BY THE COURT OF APPEAL

Mediatelegal

In  Smith –v- Secretary of State for Energy and Climate Change [2013] EWCA Civ  1585 the Court of Appeal stress that applications for pre-action disclosure should not become “mini trials” and set out the appropriate test for the courts to consider.

THE RULES RELATING TO PRE-ACTION DISCLOSURE

  1. CPR 31.16 provides:

“(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where-

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

(c) if proceedings had started, the respondent’s duty by way of standard disclosure , set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks  disclosure ; and

(d)  disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.

This mirrors to a large extent the statutory basis for the power which is found in section 52 of the County Courts Act 1984.

THE DECISION

Smith was an industrial deafness case where the claimant had been a miner and sought documents relating to disclosure of documents relating to his exposure to noise at several collieries.

The District Judge made an order for disclosure. This was overturned by the Circuit Judge who on the decision of Flaux J in Kneale v Barclays Bank [2010] CLTC 233 ([2010] EWHC 1900 (Comm).  The judge found that the claimant had failed to adduce medical evidence that he had suffered hearing loss and, therefore, had failed to adduce medical evidence showing that his hearing loss was worse than other people of his age. Consequently the claimant had failed to surmount   “this modest jurisdictional threshold”

THE APPEAL TO THE COURT OF APPEAL

The Court of Appeal was clear that there was no “jurisdictional arguability threshold”. Underhill L.J. observed:-

If there were a jurisdictional requirement of a minimum level of arguability the question would necessarily arise of how the height of the threshold is to be described. But abstract arguments of that kind tend to be arid and unhelpful. It is inherently better that questions about the likelihood of the applicant being able in due course to establish a viable claim are considered as part of a flexible exercise of the court’s discretion in the context of the particular case.

THE RELEVANT TEST

However there remained issues that needed to be considered:

“Essentially the same questions as Judge Langan considered under the head of jurisdiction still fall to be considered in the exercise of the Court’s discretion under CPR 31.16. I would myself avoid the language of “arguability”, which is more apt to the case where proceedings have started and may strike rather the wrong note in the present context: after all, it could be said that one of the reasons for seeking pre-action disclosure  may be to enable a claimant to find out whether he has an arguable case (cf. para. 68 of Rix LJ’s judgment inBlack v Sumitomo (para. 10 (2) above)). I would prefer to ask whether the applicant has shown some reason to believe that he may have suffered a compensatable injury; and, if so, with what degree of likelihood (cf. Rix LJ’s observations quoted at para. 10 (8) above). But that is largely a matter of language. The point remains that if, in the present case, there was no reason to believe that the Appellant might have suffered noise-induced hearing loss then it would not be right to order  pre-action disclosure ; and even if he had got over that hurdle but the claim could nevertheless be characterised as “speculative” it might be wrong to require any  disclosure which was onerous.”

 WHAT INFORMATION SHOULD A CLAIMANT PROVIDE?

 “The evidence that the Appellant had suffered hearing loss was indeed very short on detail, and I would encourage those advising potential claimants in similar circumstances to provide the Court, if they can, with rather fuller evidence than was proffered in this case. Nevertheless I do not believe that the District Judge was obliged to ignore it unless it was supported by an audiogram or a medical opinion. People do not necessarily need a test or a doctor to tell them if their hearing has deteriorated. They can tell from the kind of problems – with hearing the television or using the telephone – that the Appellant reported, however briefly, in this case; and they can also, in a broad way, judge if those problems seem to be worse than those experienced by their contemporaries. Such evidence would not of course suffice at trial; but in my view it does afford sufficient reason to believe that the Appellant may indeed have suffered hearing loss, and that, if so, it may have been caused by the fact that he worked for many years in a very noisy environment. His evidence as to his working conditions underground goes indeed to both points: that is, it both renders the claim that he had suffered hearing loss more likely and affords some reason to believe that such loss may have been noise-induced. It remains necessary to bring into the equation the burden which giving disclosure would impose on the Respondent; but Mr Kinnier did not seek to challenge the assessment of both the District Judge and Judge Langan that the disclosure sought would not be too onerous.”

 THE PRE-ACTION PROTOCOL

 There was an interesting discussion about the effect of the Pre-Action Protocol.

  1. I should add that Mr Huckle drew our attention to the terms of paras. 6 and 7 of the Pre-Action  Protocol for Disease and Illness Claims. Para. 7.3 requires the recipient of a  pre-action  protocol letter who does not admit the claim to enclose with his reasoned reply copies of documents “which would be likely to be ordered to be disclosed by the court, either on an application for  pre-action disclosure , or on  disclosure  during proceedings” (see fourth bullet). That obligation arises even though the claimant is not obliged to provide medical evidence with the letter of claim: see para. 6.9. It was plain that, whatever the position on a  pre-action disclosure  application, the documents sought by the Appellant would be disclosable if proceedings were commenced; and he submitted that it would be anomalous if his failure to produce a medical report – or an audiogram – meant that the Appellant was refused  disclosure  under CPR 31.16 of documents to which he was entitled under the Protocol. However I do not think that reference to the Protocol can give a short-cut answer to the issue before us. Protocols do not have the status of rules and there is no obligation as such to comply with them; nor are they drafted with the precision of the rules themselves. If, applying CPR 31.16 according to its terms, the Court were to conclude that an applicant was not entitled to  pre-action disclosure , it is inconceivable that the respondent would at some subsequent stage be held to have failed to comply with the Protocol, still less subjected to any sanction, by withholding the documents in question  pre-action  simply because they would have been disclosable if proceedi
    ngs were commenced and thus on a literal reading fell within the terms of para. 7.3.”

SHOULD THE CLAIMANT DISCLOSE AN AUDIOGRAM?

At the appeal stage the defendant argued that if it was going to be subject to onerous disclosure obligations then the claimant should disclose any audiogram. This was rejected on the grounds that it was not a point taken before the District Judge.

     “The point is distinct from the question whether without production of the audiogram the Appellant could show sufficient reason to believe that he might have suffered a compensatable injury: rather, it is based on considerations of fairness and mutuality. I have in principle some sympathy with it. The Protocol, reflecting the over-riding objective, expressly enjoins openness between parties to a potential claim – see in particular para. 3 – and I have no difficulty in accepting that it may be a relevant consideration in any exercise of the Court’s discretion under CPR 31.16 that the applicant has himself been unco-operative in the supply of documents or other information. But the point was not put this way below, and neither the District Judge nor Judge Langan considered whether there were legitimate reasons, whether by reference to privilege or otherwise, for the Appellant’s refusal to disclose his screening audiogram. This is not territory on which we can enter at this stage”

SUMMARY

As is so often the case the appellate court’s findings are summarised in a pithy supplemental judgment, in this case Longmore LJ:

Applications for pre-action disclosure are not meant to be a mini-trial of the action and should be disposed of swiftly and economically. Elaborate arguments are to be discouraged; I hope that my Lord’s judgment will mean that in the future these applications can be disposed of without resort to the appellate process.”

 KEY POINTS

  • This does not represent a carte blanche for all pre-action applications. Rather it stresses that there is no “jurisdictional” test; rather it is a test of common sense where the burden on the applicant is not too onerous.
  • Remember the Court of Appeal held that it would be useful if the applicant provided more detailed information.
  • The behaviour of the applicant could, potentially, be a factor in the exercise of the court’s discretion.
  • These applications should not become “mini trials”.