SHOULD THE COURT ORDER PRE-ACTION DISCLOSURE? THE JURISDICTIONAL REQUIREMENTS ARE NOT SATISFIED AND THE COURT WOULD NOT EXERCISE ITS DISCRETION IN ANY EVENT

This is the first of two posts today about applications for pre-action disclosure. The applicants were, eventually, unsuccessful in each.  Here the judge found that the applicants had not met the first jurisdictional requirement for disclosure. Even if they had then the court would not exercise its discretion in their favour.

“The difficulty in identifying which of the documents within each category falls within the scope of standard disclosure militates against the establishment of the Court’s jurisdiction…In my judgment, the Applicants have not satisfied the jurisdictional requirements of CPR rule 31.16(3), at least for much of the documents sought by the Applicants.”

KEY PRACTICE POINTS

In some ways there is an element of Catch 22 here.  The applicants’ case was deemed too vague to be able to identify the documents sought. If they had provided draft Particulars of Claim then they faced the argument that they could plead their case without the documents. In any event this case shows that an application for pre-action disclosure has to be focussed.  The applicant must identify, with some precision, the documents sought and show why they are needed prior to the issue of proceedings.

THE CASE

Benski & Anor v Pulse Films Ltd & Ors [2026] EWHC 2280 (Comm) (03 September 2026) Peter MacDonald Eggers KC (sitting as a Deputy Judge of the High Court)

THE FACTS

The claimants sought pre-action disclosure of documents from the defendant. Arguing that they needed such documents to bring a claim for fraudulent misrepresentation and unlawful means conspiracy following a failure to make payments on a secured loan note after the sale of shares in a film company.

“The Applicants contend that they have a claim arising out of a substantial unpaid debt in excess of US$20 million by the Vice Group to the Applicants and have advanced serious allegations of fraudulent misrepresentation and unlawful means conspiracy against the Respondents. In particular, the Applicants’ case is that they were induced not to exercise valuable contractual enforcement rights (in particular, the Forced Sale Right and rights under the VH Guarantee) by alleged repeated and false assurances by the Respondents as to the valuation, solvency and an imminent sale of the Vice Group. ”

WHAT HAPPENED IN A NUTSHELL

The application  for pre action disclosure was refused.  The documents were not needed to enable the applicants to issue proceedings.   The judge did not accept that the documents sought would fall within the scope of standard disclosure.  Even if they did the court would not exercise its discretion to allow disclosure.

Decision on jurisdiction

The Judge accepted that the claimants and defendants were likely to be parties to subsequent proceedings.

He also accepted that disclosure of at least some documents was desirable.

But there was a fundamental difficulty: the proposed claim was insufficiently clearly formulated.

The claim depended upon alleged representations, but there was uncertainty about:

• precisely who made the representations;
• to whom they were made;
• what exactly was said;
• when the representations were made;
• the circumstances in which they were made; and
• how the alleged conspiracy operated.

The problems were particularly acute with the conspiracy allegation.

As a result, the Court could not confidently determine which documents within the broad categories sought would fall within standard disclosure.

The jurisdictional requirements of CPR 31.16 were therefore not satisfied, at least in relation to much of the disclosure sought.

The Court’s discretion

Importantly, the Judge went on to consider the discretion even if jurisdiction existed.

He identified several factors against granting relief.

1. The disclosure categories were too broad

The requests covered a period of approximately one year.

They used expressions such as:

• “relate to”;
• “mention”;
• “regard”; and
• “refer to”.

Those descriptions were insufficiently precise and would require the defendants to exercise considerable judgment about what documents fell within the categories.

That was particularly problematic in a pre-action disclosure exercise.

2. The burden was disproportionate

The defendants estimated that the initial pool would contain approximately 264,000 documents.

About 6,600 documents might require substantive review.

The estimated cost was £440,000 plus VAT.

Even though the claimants offered to bear the cost, the Court considered this a disproportionately heavy burden, particularly because a further disclosure exercise might become necessary if proceedings were subsequently issued.

3. The underlying claim was inadequately particularised

The Judge regarded the lack of clarity in the proposed claim as a particularly important consideration.

There was inconsistency between the evidence about a specific conversation involving Ms Treat and the much broader allegation that representations had been made over a period of months.

The same problem was even more pronounced in relation to the alleged conspiracy, where there were no adequate particulars of the alleged agreement or intention.

Without properly defined issues, it was difficult to determine the relevance of the documents sought.

4. The claimants could issue proceedings without the disclosure

This was an important factor.

The claimants’ own evidence was that they could bring the claim on the basis of the evidence already available, although the pleading might subsequently require substantial amendment.

The Judge considered that the preferable course was therefore to issue proceedings, plead the claim, allow the defendants to respond, and then undertake disclosure in the ordinary way.

There was nothing sufficiently unusual about the case to justify departing from that normal process.

5. Allegations of fraud do not create a special entitlement to pre-action disclosure

The Judge stressed that an allegation of fraud does not itself justify pre-action disclosure.

The applicant needs allegations which have specificity and conviction, coupled with an appropriately focused request for documents.

The Court should be slow to allow a prospective claimant to conduct a general review of another party’s documents merely because the claimant hopes that the documents will reveal evidence of dishonesty.

6. Confidentiality was relevant

The requested documents were likely to contain commercially sensitive and confidential information.

Although confidentiality would not necessarily prevent disclosure once litigation was underway, it was a factor weighing against extensive disclosure before proceedings had been commenced and before the issues had been defined.

7. There was no substantial prejudice in refusing disclosure

The claimants maintained that they could plead their claims without the documents.

The Judge therefore considered that refusing pre-action disclosure would not cause substantial prejudice to them.

Delay

There had also been a period of approximately 18–24 months between the first indication that an application might be made and the actual application.

The Judge gave this factor little weight because the defendants had not placed significant reliance upon it.

Conclusion

The application for pre-action disclosure was dismissed.

THE JUDGMENT ON JURISDICTION

68.  I am prepared to accept that the Applicants and the Respondents are “likely” to be – meaning that they may well be – parties to any proceedings which are commenced by the Applicants. Further, I am prepared to accept that the disclosure of at least some of the documents is desirable for one or more of the purposes referred to in CPR rule 31.16(3)(d).
69. However, I have difficulty in accepting the Applicants’ submission that all of the categories of the documents sought to be disclosed would fall within standard disclosure.
70. The chief obstacle to concluding that this jurisdictional requirement (standard disclosure) is satisfied is the uncertainty surrounding the formulation of the claim or complaint so far articulated by the Applicants. There is much to justify the critique undertaken of the formulation of the Applicants’ claim by Mr Harper in his evidence. As the Applicants’ case is dependent on the Representations being made to the Applicants, and the Applicants relying on those Representations, the Applicants’ case is vague in identifying which individuals are said to have made the Representations, in what terms and in what circumstances, and precisely when they were said to have been made. The details relating to the claim based on an alleged conspiracy are even more difficult to distil. These are matters which should be known to the Respondents before being required to review the documents in their control with a view to disclosing the same.
71. As a result, as the scope of the Applicants’ case is not sufficiently specifically defined, it is equally difficult to conclude that all of the documents sought would fall within the scope of standard disclosure, given the description of the categories of the documents sought.
72. I suspect that it is likely that at least some of the documents sought by the Applicants would fall within the bounds of standard disclosure, but I do not consider that would extend to all of the documents within Category 1 (documents referring to a sale price or valuation in respect of the Vice Group), Category 4 (inter-partes correspondence relating to the value of the Vice Group, the payment of the sums due to the Applicants, the solvency of the Vice Group and the commencement of Chapter 11 proceedings), and Category 5 (documents held by the Respondents which point to concealing specified information from the Applicants). More importantly, I cannot be certain that even those documents which I suspect would fall within the scope of standard disclosure, would do so. The difficulty in identifying which of the documents within each category falls within the scope of standard disclosure militates against the establishment of the Court’s jurisdiction.
73. In my judgment, the Applicants have not satisfied the jurisdictional requirements of CPR rule 31.16(3), at least for much of the documents sought by the Applicants.
74. These considerations, in any event, are relevant to the exercise of the Court’s discretion which I now address.

THE JUDGMENT ON THE EXERCISE OF THE COURT’S DISCRETION

Discretion

75. Mr Haque KC submitted on behalf of the Applicants that the Court’s discretion should be exercised in their favour for the following reasons:

(1) The documents sought are likely to fill in the gaps in the history of the matter and shed light on the key matters in issue. The material would also help the Applicants plead a more focused case, which was preferable in a large and complex case.

(2) The Applicants cannot properly plead issues of knowledge and dishonesty without access to the Respondents’ internal documents. The very essence of the contemplated claims – fraudulent misrepresentation and unlawful means conspiracy – turn on the state of mind of the representors at the moment they made the Representations. That state of mind is not accessible through inference alone; it can only be established from the Respondents’ documents.

(3) It is sufficient to justify an order for pre-action disclosure if the substantive claim pursued in the proceedings is properly arguable and has a real prospect of success.

(4) If the documents demonstrate that the Respondents were aware of the parlous financial position of the Vice Group whilst continuing to assure the Applicants that a sale was progressing, the central factual question will be resolved. As Mr Field observed in his witness statement, at para. 25-26, the documents will either support or impair the Applicants’ case; in either case, their disclosure will be desirable.

(5) The jurisdiction is particularly apt where the documents sought go to issues of knowledge, state of mind, or internal decision-making, which cannot otherwise be accessed. The critical issues of knowledge, intention and concealment in this case can be established only from documents in the Respondents’ control. Without disclosure, the Applicants face the precise predicament CPR rule 31.16 is designed to address – being required to make serious allegations of fraud against parties who alone hold the contemporaneous records that would confirm or refute them.

(6) The Court should not attempt to resolve substantive disputes or determine the merits of the claim at the pre-action stage. It is sufficient that the claim is properly arguable.

(7) According to Mr Harper’s second witness statement dated 2nd April 2026, at para. 7-8, the cost to the Respondents in providing disclosure would be at least £440,000 (plus VAT) and the Respondents will have to review a starting pool of approximately 264,000 documents, which may reduce to approximately 6,600 documents for substantive review. That is a proportionate and justified exercise; it is not an excessive burden. The Court has ample power to impose focused search terms and custodian limits to manage the exercise, and the Applicants invite the Court to do so if minded to grant the order.

(8) If disclosure may enable the dispute to be resolved, or may avoid proceedings altogether, that is a powerful factor in favour of granting relief.

76. Mr Allcock on behalf of the Respondents submitted that:

(1) The clarity and identification of the issues raised by the complainant is one of the “important considerations” at the discretionary stage identified by Rix LJ in Black v Sumitomo Corp [2001] EWCA Civ 1819; [2002] 1 WLR 1562, para. 88. To allow pre-action disclosure in circumstances where “the complaint, its factual and legal basis, and the issues which it raises, are speculative in the extreme” would be to replace “focused allegation by a roving inquisition” (Black v Sumitomo Corp, para. 91-92).

(2) In this case, there is strikingly little clarity about the case which the Applicants intend to bring and the issues to which it would give rise. On the contrary, it is vague, confusing and internally inconsistent. This highly unsatisfactory situation has now been compounded by the new case which the Applicants seek to run in their skeleton argument, which is not only unfair to the Respondents, but further adds to the confusion. The Respondents submit that there should plainly be no order for pre-action disclosure in these circumstances.

(3) It is right that the Court should not “attempt to resolve substantive disputes” at the pre-action stage, but the merits may, in an appropriate case, be a consideration to be taken into account when the Court exercises its discretion. The Court must take into account the lack of ostensible merit in the claims, which it can do so even without resolving contentious factual issues:

(a) The Applicants’ inability to articulate and particularise the misrepresentation case is not only a reason to refuse the relief sought but is also a clear indication that it could not succeed at trial. The case is based on alleged oral misrepresentations which, contrary to what is suggested by the Applicants, the Respondents deny making. If the Applicants cannot even put forward a case as to the gist of what was said, or when it was said, or by whom it was said, or to whom it was said, there is no real prospect of that case succeeding at trial.

(b) There is no prospect of the implied representation case succeeding, as it depends on the alleged oral representations, which are vague in content.

(c) Having regard to confidential documents which were placed before the Court, the Applicants’ case on the falsity of the alleged Representations cannot be maintained, as the value of the Vice Group is evidenced to be approximately US$1 billion.

(d) The unlawful means conspiracy claim relies on the same alleged Representations and therefore suffers the same problems articulated above. In addition, there is no attempt to identify the date of the combination, or the circumstances in which it was reached. In particular, it is impossible to see how the Applicants could show that the predominant intention of the conspiracy (assuming it to have existed, which it did not) was to injure them, rather than to benefit Pulse and the Vice Group.

(e) The claims are also bound to fail on causation and loss, because the Applicants cannot demonstrate that the exercise of the Forced Sale Right, or the enforcement of the VH Guarantee, would have resulted in their recovery of US$20,430,000 (the Applicants’ alleged loss).

(4) The documents or classes of documents sought by the Applicants have not been “crafted with great care“, have not been “properly limited to what is strictly necessary“, and are not “highly focussed” (Carillion plc (in liq) v KPMG LLP [2020] EWHC 1416 (Comm), para. 67). The Applicants have proposed broad and unfocussed categories of documents which would require a vast collection and review process by the Respondents’ solicitors. It is inappropriate to require a respondent to identify which of its documents are within the scope of standard disclosure. The fact that the Applicants would pay for it is no answer to the point; it is not fair and it is inconsistent with the adversarial nature of litigation for the Applicants to be permitted to review thousands of internal and confidential documents of the Respondents in order to see whether they can sue them for fraud.

(5) The scale of the proposed exercise and the reasons why it would require a large amount of individual review is explained in Mr Harper’s first witness statement, at para. 54.6, and in his second witness statement, at para. 7-8: the Respondents would have to review a starting pool of documents of 264,000 documents, which are likely to reduce to 6,600 documents, at a cost of at least £440,000 (plus VAT).

(6) Mr Field has stated in his first witness statement, at para. 32, that “The Applicants can make their claim on an inferential basis without disclosure but the evidence is incomplete and in all likelihood any pleadings would require significant amendment“. If that is right, and a viable claim can already be pleaded, then there is no realistic possibility of any alleged fraudulent conduct would escape detection in the litigation. If the applicant can bring the claim without the pre-action disclosure, that militates against the grant of the order sought (First Gulf Bank v Wachovia Bank National Association [2005] EWHC 2827 (Comm), para. 23-27)).

(7) The Vice Group’s internal documents relating to the sale process and its business in the months leading to the Chapter 11 process, as well as those relating to its dealings with the Applicants, are confidential vis à vis the Applicants. The public interest in the fair disposal of civil disputes routinely justifies an interference with parties’ rights of confidentiality as part of the disclosure process in ongoing litigation. There is no equivalent consideration before proceedings have been commenced and before the parties have pleaded their case.

(8) This is not a case in which there is some unusual feature which justifies a departure from the normal course of events in litigation, still less a departure of this significance involving such an extensive pre-action process.

(9) The Court should not order pre-action disclosure “to encourage fishing expeditions to enable a prospective plaintiff to discover whether he has in fact got a case at all” (Zenith Insurance plc v LPS Solicitors Ltd [2020] EWHC 1260 (QB), para. 26(5)).

(10) Orders for pre-action disclosure in the Commercial Court have frequently been described as “unusual” (First Gulf Bank v Wachovia Bank National Association [2005] EWHC 2827 (Comm), para. 24; Assetco plc v Grant Thornton UK LLP [2013] EWHC 1215 (Comm), para. 17(6); Carillion plc (in liq) v KPMG LLP [2020] EWHC 1416 (Comm), para. 15).

(11) Although the jurisdictional threshold may be passed relatively easily in many cases, that does not mean that an order will therefore be appropriate as a matter of discretion, or that there is any presumption to that effect.

77. In my judgment, even assuming the Court otherwise had the jurisdiction to make the order under CPR rule 31.16, the application for an order for pre-action disclosure should be refused as a matter of the Court’s discretion for the following reasons.
78. First, the categories of documents sought to be disclosed are not precisely and narrowly defined but are broad and generalised in scope in that:

(1) The period for the dates of creation of the documents sought is one year (June 2022 to May 2023). This is a considerable period of time and represents the type of date range one encounters in the disclosure exercise implemented as part of legal proceedings. However, in the context of pre-action disclosure, imposing a requirement on a party to garner, search for and review what may be a sizeable cache of documents over many months speaks against the exercise of the Court’s discretion in favour of pre-action disclosure.

(2) The documents to be disclosed are described as documents which “relate to” the sale of the Vice Group or Pulse and must “mention” a potential sale price or valuation (category 1), and which “regard” the value and solvency of the Vice Group, and the prospect of the Applicants being paid from the proceeds of sale (category 4), and which “refer to” the Applicants’ concealing or withholding information from the Applicants (category 5). These are terms which are amorphous in scope and require the exercise of judgment by the Respondents to determine whether the documents ultimately to be disclosed fall within these descriptions.

(3) The date range and description of the documents sought to be disclosed will impose a considerable burden on the Respondents in evaluating what must and what must not be disclosed, if an order were made.

79. Second, the disclosure exercise sought to be imposed on the Respondents is a very substantial one. According to Mr Harper’s evidence, the starting pool of documents to be reviewed comprises 264,000 documents. Even if one considers only the estimated number of documents which might require a substantive review (6,600 documents), that still translates into a substantial disclosure exercise. The estimated cost of this exercise is £440,000 (plus VAT). Even though the Applicants would be required to bear that cost if disclosure were ordered, an additional disclosure exercise would have to be undertaken, perhaps involving substantial duplication, if proceedings are commenced. I consider that this to be a disproportionately heavy burden to be borne by the Respondents, both in resources and in time. That does not represent an efficient approach to case management.
80. Third, there is a lack of clarity in the formulation of the Applicants’ substantive claim against the Respondents. As mentioned above, I consider that there is substance in Mr Harper’s critique of the way in which the Applicants have formulated their claim. For example, at one stage, reference was made to a specific representation made by Ms Treat in October 2022, but elsewhere the Applicants refer to representations allegedly being made in a variety of number of meetings, discussions and telephone calls over several months, without any attempt to identify which individual(s) made the specific representations to which individual(s), the circumstances in which the Representations were made, and the words used in the relevant context. The same criticism carries more weight in respect of the allegation of conspiracy, where no particulars are offered in respect of the Respondents’ alleged intention and agreement. In such circumstances, it is difficult to define the issues to which the documents sought might properly be said to be relevant. The absence of a draft statement of case prepared by the Applicants – especially when it is said that a claim could currently be brought (as to which see below) – underlines the uncertainties in this respect.
81. These three considerations weigh most heavily in the exercise of the Court’s discretion. I would have refused the application based on these considerations alone. However, the following further considerations reinforce my decision not to make an order for pre-action disclosure.
82. Fourth, Mr Field’s evidence is that the Applicants are in a position to bring a claim based on the documents currently available to them and on inferences to be drawn, although I note that Mr Field also states that any such statement of case would not benefit from all of the relevant evidence and would require amendment. In those circumstances, it seems to me that the preferred course would be for the Applicants, if they choose, to commence proceedings and serve their particularised claim against the Respondents, to which the Respondents can respond with their own statement of case. If such a course were undertaken, the issues in dispute between the parties will be precisely defined, which would enable the Court to make an order for disclosure in the usual way. There is nothing unusual or noteworthy in the Applicants’ complaint which justifies making an order for pre-action disclosure.
83. Fifth, although I have not sought to assess the merits of the Applicants’ claim against the Respondents, it is not obvious to me that there is concrete evidence of dishonesty which would justify the making of the order for pre-action disclosure. That said, I have not concluded that such an allegation could not properly be made. In considering the exercise of the Court’s discretion, I have had regard to what Rix LJ said in Black v Sumitomo Corp [2001] EWCA Civ 1819; [2002] 1 WLR 1562, at para. 54, that the mere fact that an allegation of fraud is made does not give the applicant a privileged access to disclosure prior to the institution of proceedings, noting that “it cannot be right that an allegation of fraud should assist the potential claimant to obtain pre-action disclosure, unless his allegations carry both some specificity and some conviction and his request for disclosure is appropriately focussed”. At para. 92, Rix LJ further said that:

“… unless there is some real evidence of dishonesty or abuse which only early disclosure can properly reveal and which may, in the absence of such disclosure, escape the probing eye of the litigation process and thus possibly all detection, I think that the court should be slow to allow a merely prospective litigant to conduct a review of the documents of another party, replacing focused allegation by a roving inquisition.”

84. Sixth, the provision of pre-action disclosure may well extend to commercially sensitive and/or confidential information contained in the documents to be produced. That is not to say that such documents may not have to be disclosed as part of the disclosure exercise if proceedings are commenced, but this is a consideration which counts against the exercise of the Court’s discretion.
85. Seventh, I do not consider that there is any substantial prejudice to the Applicants if the order were not granted, as they maintain that they can plead their claims against the Respondents even without the disclosure sought.
86. I would add that there was a considerable period of time – 18 to 24 months – between the Applicants’ first intimation of an application for pre-action disclosure and the making of the application itself. The Respondents did not place any emphasis on this consideration in their opposition to the application. Accordingly, I have given little weight to the period of delay in the exercise of the Court’s discretion.

Conclusion

87. For the reasons explained above, the Applicants’ application for pre-action disclosure under CPR rule 31.16 is dismissed.

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