MAKING AN APPLICATION FOR PRE-ACTION DISCLOSURE, AFTER THE ACTION IS STARTED: THE CLAIMANTS HAVE FIVE PROBLEMS

June 6, 2022 · by · in Applications, Disclosure

The judgment of Senior Master Fontaine in Hart & Ors v Royal Borough of Kensington And Chelsea & Ors [2022] EWHC 1090 (QB) highlights the need for applications for disclosure to be made with some considerable focus.  The court cannot make an order for pre-action disclosure once proceedings have been issued.  The claimants more general application for disclosure was dismissed on the grounds that, in the absence of pleadings and a properly focussed case, it was not possible to determine what documents were relevant.

“The pre-action disclosure procedure is not in place to enable a claimant to identify if they have a claim at all, but to assist them in further investigating a claim that is already identified and explained, to enable the parties to obtain a better understanding of each other’s position to assist in disposing of or narrowing issues before expensive litigation is embarked upon.”

THE CASE

The claimants are police officers bringing a claim for psychological injuries arising out the the Grenfell fire.  They made an application for pre-action disclosure against the 12 defendant the Commissioner of Police for the Metropolis.

 

THE CLAIMANTS’ PROBLEM: YOU CAN’T HAVE PRE-ACTION DISCLOSURE ONCE PROCEEDINGS HAVE STARTED

The first difficulty the claimants had was that the application for pre-action disclosure had been made after proceedings had been issued.  The Master held that the court had no jurisdiction to hear a pre-action disclosure application in these circumstances.

    1. The application notice states that the application is for an order for pre-action disclosure and pursuant to paragraph 7 of the Pre Action Protocol for Personal Injury Claims. However, in my judgment an application cannot be made under CPR 31.16 as proceedings were issued on 11 June 2020, although not served, pursuant to stays made by order of the court by consent, so the application is not made pre-action. This was conceded by leading Counsel for the Claimants at the hearing but it was submitted that the court could consider the application either under its general case management powers, including CPR 3.1(2) (m), or specific disclosure under CPR 31.12 or as staged disclosure under CPR 31.13. It was also submitted that the court could apply the principles applicable to pre-action disclosure under CPR 31.16 in the particular circumstances of this application.

THE CLAIMANTS’ SECOND PROBLEM: NO JURISDICTION UNDER CPR 3.1

The Master did not accept the claimants’ arguments that an order could be made under the court’s general powers in CPR 3.1 (2)(m)

  1. In my judgment, the court does not have jurisdiction to make an order for disclosure under CPR 3.1(2) (m) in this application. Rule 31.1, setting out the scope of Part 31, states that it sets out rules about the disclosure and inspection of documents, and it would be unlikely that it would have been intended for rule 3.1(2) (m) to give the court unfettered jurisdiction to order disclosure which might be inconsistent with the threshold requirements contained in those rules.

THE CLAIMANT’S THIRD PROBLEM: IDENTIFYING THE CORRECT RULE

The Master held that the Court did have jurisdiction under rule 31.12.  The question was whether that discretion should be exercised.
    1. Counsel for the CMP submitted that an application for specific disclosure could not be made prior to standard disclosure having taken place, and that this was made clear from CPR 31 APD.5 which states at 5.1:
“If a party believes that the disclosure of documents given by a disclosing party is inadequate he may make an application for an order for specific disclosure (see rule 31.12).”
    1. I consider that I have jurisdiction under rule 31.12 to deal with the application. There is no provision in rule 31.12 which restricts the court from making an order for specific disclosure before standard disclosure has taken place. I accept that standard disclosure before specific disclosure would be the normal course of the disclosure process, but there may be occasions where the parties are not ready to embark on full standard disclosure but where one party seeks specific documents before that process begins. Further, the note in the White Book Volume I at 31.12. 1.1 states:
“An application under this rule may be made at any stage of the proceedings, and particularly at times when the court is likely to be giving directions in any event, such as allocation, case management conference, with the listing questionnaire, or at the pre trial review.”
And at 31.12.2
“The court has a discretion as to whether it makes the order. It may make an order at anytime, regardless of whether standard disclosure has already occurred; …………………”
The application was in fact listed to be heard at a case management conference.
    1. Although there appears to be no reason why the application could not be dealt with under Rule 31.13, this rule is more likely to be applicable to stages of standard disclosure where there may be a split trial of a particular issue or issues. I do not consider that the application should be dealt with under CPR 31.13. The application was not expressed or intended as a ‘staged’ approach to disclosure, and the rule is not apt for this application.
  1. I do not accept the submission at Paragraph 6 of Mr Waite’s skeleton argument that the PO Claimants have made a concession that rule 31.12 is not applicable by paragraph 10 of Ms Taylor’s witness statement [1470]. This is not what she says, and rule 31.12 is specifically relied upon in Mr Huckle’s skeleton argument. In any event, it is a matter for the court to determine whether it has jurisdiction. Accordingly I will deal with the application under CPR 31.12, taking into account all the circumstances of the case, and the overriding objective in Part 1, including proportionality. I consider that I may take into account in relation to all the circumstances of the case, factors in Rule 31.16 which are not inconsistent with rule 31.1

    2.

 

THE CLAIMANT’S FOURTH PROBLEM: JUSTIFYING THE APPLICATION

The Master held that the application could not be allowed, there were no pleadings and the case against the 10th defendant had not been fully formulated.

    1. The letter from the PO Claimants’ solicitors to the CPM dated 29 March 2022 [1584] states that the primary reason for the application is as stated in that letter as follows:
“It is, unsurprisingly, anticipated that access to the further disclosure requested will enable further particularisation of allegations against your client, which is what you consider is required.
………………………………………………………………
Finally, if mediation steps do not materialise, the requested disclosure is needed to enable the police officer claimants to plead their claims.”
    1. In oral submissions it was also put that the disclosure was required to enable the PO Claimants to investigate liability ahead of the ADR process. Neither CPR 31.12 nor CPR 31.13 prevents a claimant from requesting documents to investigate liability or plead their case. In the particular circumstances I accept that if this had been a pre-action application one of the requirements of r. 31.16 is that disclosure is desirable in order to –
“(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute be resolved without proceedings; or
(iii) save costs.”
    1. The desire to obtain documents to assist in considering liability issues in the proposed ADR/mediation, in order to dispose of claims, where possible, without the proceedings progressing further, would fall within these criteria, in my judgment, or at the very least is a relevant consideration in the exercise of the discretion under CPR 31.12.
    1. It is also required in r. 31.16 that the documents sought must be such that would fall within standard disclosure, if proceedings had started. I consider that although this is not a specific requirement in an application under CPR 31.12, it must be a relevant consideration in an application where standard disclosure has not yet occurred. The note in the White Book Volume I at 31.12.2 makes this clear:
“The court will need to satisfy itself as to the relevance of the documents sought, and that they are or have been in the party’s control, or at least that there is a prima facie case that these requirements will be met. The relevance of the documents is analysed by reference to the pleadings, and the factual issues in dispute on the pleadings: Harrods Ltd v Times Newspaper Ltd [2006] EWCA Civ 294“
    1. The primary difficulty with the application is the requirement to demonstrate the relevance of the documents sought to the issues in the case. In this application it is not possible to analyse the relevance of the documents by reference to the pleaded case, because there is only the very briefest description of the claim on the claim form, and the particulars of claim have not yet been prepared, pursuant to the agreed stay between the parties. In a pre-action disclosure application there is also no pleaded case, but the relevance of the document sought is analysed by reference to the claim as explained in the letter of claim. The PO Claimants rely upon the allegations against the Commission are set out in their letter of 17th November 2021 [1494] to the CPM where they state:
“In general terms, the allegations against the Commissioner are employers liability claims for:
1. Mismanagement and insufficient (or a total lack of) care for the psychiatrically injured Claimants, thus worsening/ prolonging their psychiatric effect unconditioned; and
2. Failing to take all reasonable steps for the safety of the officers by sending them into the insecure building with inadequate equipment, subjecting them to fear of injury and foreseeable risks of both trauma and disease
As you know, “settlement packs” are being prepared for each Claimant, which will include witness evidence detailing each officers’ specific circumstances in respect of the above.”
Of these two classes of claim, only the second is relevant to the LSOs.
    1. That limited explanation of the claim on behalf of the LSOs put the PO Claimants in some difficulty in addressing relevance of the documents to the issues in the claims. As the CPM has identified, it is difficult to satisfy this requirement where there has been neither a pleaded case nor a properly particularised letter of claim, as that makes the relevance of the documents sought difficult to identify.
    1. It has not been explained to the court why the statements taken from the LSOs have not assisted their solicitors’ ability to further particularise their claims; that would usually be the basis on which the causes of action against a particular defendant would be identified. I am told that psychiatric reports dealing with diagnosis condition and prognosis have been obtained for all PO Claimants, so I assume those must also have identified the factual circumstances which have led to the officers developing psychiatric injuries. I was not given a satisfactory explanation as to why a more detailed description of the factual matters relied upon and the likely causes of action arising out of those facts could not be provided.
    1. Notwithstanding that, I have attempted to identify from the schedule of document annexed to the application whether any of the documents meet the requirement of relevance, and if so whether the court should exercise its discretion to order that they be disclosed. My conclusions in respect of each document or category of documents are included as a Schedule to this judgment.
    1. I have concluded that the application should be dismissed. Although I have concluded that the court has in principle the jurisdiction to consider the application under CPR 31.12, I do not consider that the discretion of the court should be exercised in the PO Claimants’ favour. The reasons for this are largely apparent in the comments in the Schedule to this judgment, but I set out below the reasons applicable generally.
    1. The approach to an application for specific disclosure is clear from the title – it is intended to be an application for specific documents or classes of documents, usually where standard disclosure has revealed that there may be other documents missing from standard disclosure or documents which suggest other relevant documents by a train of inquiry. The notes to the rule in the White Book state at 31.12.1 that if a class of documents is specified “the class should be carefully defined so it is limited to what is relevant and proportionate, and so the disclosing party is in no doubt as to the scope of their obligation.” See also Carillion plc v KPMG LLP [2020] EWHC 1416 (Comm) per Jacobs J at [66]. That has not been the case for many of the documents sought. Orders for documents under rule 31.16 must also be tailored to specific documents: rule 31.16(4)(a). Although Annex C to the Pre Action Protocol for Personal Injury Claims sets out a number of suggested categories of documents in different types of claims that can be requested, that is only for the purposes of example and assistance; it is not meant to be a complete list for every case, and the documents that should be requested should be identified on a case by case basis, depending upon the type of claim and the issues identified in the letter of claim and in the response to the letter of claim. There is a lack of specificity in almost all the requests, and what is sought goes beyond what would normally be included in the scope of the Protocol.
    1. The primary reason is that which the CPM has identified, the lack of a sufficiently detailed identified case against the CPM, which makes it difficult, and in certain cases impossible, to show the relevance of the documents sought to the issue or issues in the case. The pre-action disclosure procedure is not in place to enable a claimant to identify if they have a claim at all, but to assist them in further investigating a claim that is already identified and explained, to enable the parties to obtain a better understanding of each other’s position to assist in disposing of or narrowing issues before expensive litigation is embarked upon.
    1. Further, the request does not meet any of the tests in CPR 31.16(3)(d):
“(i) To dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings, or
(iii) save costs”
because it is framed without having properly set out the PO Claimants’ claims in correspondence or identified the relevance of the requested documents to the issues in the case.
    1. The request for disclosure is not proportionate where there are only 10 Claimants at most, and no information has been provided to the CPM to enable any view to be taken as to whether the claims are viable, such as what injuries have been sustained, when the alleged injuries were sustained, how the CPM ought to have known or foreseen psychiatric harm and the likely value of each of the claims. I consider that the CPM has taken a reasonable approach in providing disclosure so far on a voluntary basis and the CPM has confirmed through Counsel that this will be continued.
  1. In my judgment the Claimants should continue their work on completing the settlement packs, and in the course of that exercise identify with more detail the claims which each of the LSO Claimants is likely to have, so that an appropriately detailed description of their claims can be provided to the CPM, and a more focused approach to requests for disclosure.

THE CLAIMANTS’ FIFTH PROBLEM: THEY WERE ORDERED TO PAY THE COSTS

Finally the Master held that it was appropriate for the claimants to pay the defendant’s costs.

27.Counsel for the CPM submitted that rule 46.1 should apply, as the application had been framed as an application for pre-action disclosure, and that the CPM should recover her costs under the general rule in CPR 46.1(2) (a).
28. I have not dealt with the application as an application under CPR 31.16, so I do not consider that rule 46.1 is appropriate for the application, and in any event there will be no costs of compliance. I consider that rule 44.2 is more appropriate to the application and the general rule in CPR 44.2(2)(a) is that the successful party recovers their costs from the unsuccessful party. I see no good reason to depart from that general rule. The CPM made her position clear in correspondence and has repeatedly sought more particulars of the PO Claimants’ case. There was no narrowing of the categories of documents sought in response, or attempt to demonstrate relevance of the documents sought to the issues. The PO Claimants should have responded appropriately to the CPM’s reasonable concerns, in my judgment. Accordingly the PO Claimants are to pay the CPM’s costs of and occasioned by the application.
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