HEARING AN APPLICATION FOR PRE-ACTION DISCLOSURE AFTER PROCEEDINGS ARE ISSUED: FURTHER DEVELOPMENTS
An earlier post considered the question whether an application for pre-action disclosure can properly be made after proceedings were issued. This issue was considered again by HHJ Moloney QC (sitting as a judge of the High Court) in Anglia Research Services Ltd -v- Finders Genealogists Ltd  EWHC 297 (QB).
- A court could not normally hear an application for pre-action disclosure once a claimant had, in fact, issued proceedings.
- The exceptions ar (i) if the claimant undertook to discontinue the first action; (ii) the claimant was contemplating issuing a second set of proceedings.
- In both cases the second set of proceedings must not constitute an abuse of process.
- In the circumstances of the case the court would ignore disclosure relating to those proceedings that had been issued but permit pre-action disclosure in relation to a potential second action.
The claimants brought an action for defamation and harassment. On the 26th November 2015 it issued an application for pre-action disclosure. This was due to be heard on the 11th December 2015. On the 10th November 2015 the claimants skeleton argument disclosed that proceedings had been issued. The question arose as to whether the court had jurisdiction to hear an application once proceedings had, in fact, been issued.
THE JUDGMENT ON THE QUESTION OF JURISDICTION
.1 The leading case on the application of CPR 31.16 is Black v. Sumitomo  EWCA Civ 1819. This establishes that a two-stage approach is called for. First the court should consider whether the specific requirements of the rule and the statute are met, including whether in principle there is a real prospect of a disclosure order being desirable in terms of disposing fairly of the proceedings, or assisting it to be resolved without proceedings, or saving costs. If that preliminary or jurisdictional threshold is passed, then the court will move to the second stage and consider whether on a detailed consideration of all the material facts the jurisdiction should or should not be exercised. The fact that at stage 1 the order may appear “desirable” is not determinative of the manner in which the jurisdiction should be exercised at stage 2. This paragraph and paragraph 7 below are addressed to the stage 1 exercise only.
a. Is there a substantial and unresolved dispute between the Claimants and the Defendants, such that they would be likely to be parties to subsequent proceedings? (sub-rule (3) a. and b.)
b. If such proceedings were to be commenced, would the documents now sought be discloseable by way of standard disclosure? (sub-rule (3) c.)
c. Is there a real prospect in principle that such disclosure before proceedings are commenced would be desirable in terms of disposing fairly of the anticipated proceedings, assisting to resolve the dispute without such proceedings, and/or saving costs? (sub-rule (3) d. i.- iii.)
.3 But all of those questions are premised on the proceedings not yet having been issued. How can or should they be approached if apparently relevant proceedings have been issued before the disclosure application is decided? There was little or no decided authority on this problem when the application was first listed. But by the time of the second hearing on 16 December 2015 a Lawtel case-note had appeared of an extempore decision of Morgan J on 10 December 2015 in Personal Management Solutions Ltd v. Gee 7 Group Ltd. (no citation number available) and the parties had helpfully been provided with counsels’ notes of the Judge’s oral ruling.
.4 PMS was an appeal to the Judge from a Master’s decision, refusing to hear an application under CPR 31.16 because proceedings had already been commenced so that no such jurisdiction existed. The Judge dismissed the appeal and explained an earlier line of authority, beginning with Arsenal FC v. Elite Sports  EWHC 3057 (Ch) and thought to authorise such applications post-issue, as having been misinterpreted. Having dealt with the specific question before him, the Judge helpfully went on to state, obiter, his analysis of how CPR 31.16 should be applied in various situations that had been canvassed in argument before him.
a. If an application under 31.16 was made before proceedings were commenced, but then proceedings were commenced before the application was heard, the court would not have jurisdiction to determine the application (except as to costs).
b. If in such a situation the claimant undertook to discontinue the first action and begin a second action which was not an abuse of process, the court would have jurisdiction over a 31.16 application relating to the second action, but not the first.
c. If one set of proceedings had been brought, and the claimant contemplated bringing a second set of proceedings which would not be an abuse of process (without discontinuing the first), the court would have jurisdiction to hear a 31.16 application in relation to the prospective second action notwithstanding that the first action was continuing.
(If I may respectfully say so, I find this general approach a practicable and persuasive one, and I propose to follow it and apply it so far as I can to the rather different fact-situation before me in this case.)
.5 In this case, the Claimants have issued proceedings relating to three specific alleged libels published in November and December 2014 (the first action). They do not propose to discontinue those proceedings, but they are contemplating the issue of a second set of proceedings, a draft claim form for which was produced at the second hearing of this application. It includes Mr Turvey senior as a 3rd Claimant. In summary, it relates to the following causes of action:
a. in defamation (C1 and C2 only) :
i. the email of 26 August 2015 referred to above;
ii. publication of the Change.org petition to specified beneficiaries in June 2014;
iii. further publications of that petition on a number of occasions between December 2014 and October 2015, which cannot better be identified pending disclosure.
b. in harassment under ss. 1 to 3 of the Protection from Harassment Act 1997:
i. by C1 as representative for its employees – a series of unspecified “aggressive communications”
ii. by C2 personally – a series of statements including the three complained of as libels in the first action, the three complained of as libels in the second action, the tweets about him between September and December 2014 and an alleged threat of violence by D2 in November 2013
iii. by C3 personally – the tweets about him between July and September 2014.
.6 Adopting Morgan J’s approach in PMS (above), it is clear that this court now has no jurisdiction to hear a 31.16 application in respect of the causes of action complained of in the first action, because that had been commenced by issue before the application came on for hearing. Two jurisdictional questions arise in respect of the proposed second action:
a. Would it be an abuse of process to bring that action while the first action was still extant?
b. Does the 31.16 application relate to the proposed causes of action complained of in the second action, as opposed to those already sued on in the first action?
a. This is not a case in which the claimant has only one substantive cause of action against the defendant (for example, a simple contractual dispute) so that the issue of more than one set of concurrent proceedings would obviously be an abusive duplication.
b. In defamation each separate publication even of the same document may be regarded as a separate cause of action, and certainly the publication of different words or of the same words on different occasions is properly so regarded. The defamation claims in the two actions clearly relate to distinct causes of action for which separate proceedings might properly be issued. Though it is likely they would in due course be consolidated or tried together, that does not render separate claim forms an abuse of process.
c. The exceptionally short one-year limitation period in defamation (as opposed to six years for harassment) will in appropriate circumstances provide a clear justification for the issue of a “protective writ” in respect of some parts of one’s claim but not others. Given that the parties were in active correspondence in the run-up to the expiry of the limitation periods for the earlier publications complained of and that further instances of potential defamations were still coming to light, it was not an abuse of process to issue the first defamation proceedings within the limitation period, and it would not be an abuse of process to issue the second defamation proceedings concurrently in due course.
d. The statutory tort of harassment is unusual in that it relates not to single specific incidents but to the pursuit of a course of conduct or campaign comprising two or more such incidents. Those incidents can include the making of statements to a third party, which may or may not also be defamatory in their nature. To be civilly actionable, the campaign viewed as a whole must pass a test of criminal gravity. It follows that there is no inherent abuse of process in issuing harassment proceedings which include, among the incidents relied on, statements which are already the subject of existing defamation proceedings between the same parties.
.8 The next question is whether the 31.16 application relates to the second proceedings as opposed to the first. The original application and the evidence in support were prepared before the first proceedings were issued, and are at many points phrased in such a way as to indicate that they are addressed to pre-action disclosure in contemplation of an action similar to the first proceedings. (This is a matter which may well be important on the question of costs in due course.) But, like the preceding solicitors’ correspondence, they also refer expressly to the proposed claims in harassment which form no part of the first proceedings, and to other defamatory publications such as the 26 August 2015 email which also form no part of the first proceedings.
.9 I bear in mind the overriding objective, and the Court’s obligation to avoid wasteful duplication of proceedings and to identify and resolve the real points of dispute between the parties. I consider that the application as made related to a bundle of potential causes of action, including both those comprised in the issued first action and those contemplated in the proposed second action. In this situation, developing the approach adopted in PMS (above) I conclude that the proper course is for the Court to disregard for the purposes of pre-action disclosure those causes of action which form the subject of the first action, but to accept and so far as appropriate exercise the pre-action disclosure jurisdiction in respect of the additional and separate causes of action contemplated in the second action. (For the avoidance of doubt, if a given fact or matter such as the “John Davies” posting is relied on in both proceedings, but in respect of distinct causes of action, I see no compelling reason to disregard it in respect of disclosure directed towards the second proceedings merely because it has already been sued on in the first proceedings in a different way.)”
THE EXERCISE OF THE COURT’S DISCRETION
The judge went on to consider the court’s discretion and held that it was appropriate to order pre-action disclosure in the circumstances of that case.
- Pre-action disclosure was justified and reasonable: Court of Appeal decision.
- Pre-action disclosure: the appropriate test considered by the Court of Appeal
- Application for pre-action disclosure must be made pre-action.