Pre-action disclosure—requirements and the courts' approach
Pre-action disclosure—requirements and the courts' approach

The following Dispute Resolution guidance note provides comprehensive and up to date legal information covering:

  • Pre-action disclosure—requirements and the courts' approach
  • When to make an application for pre-action disclosure
  • Courts' approach to pre-action disclosure
  • Court's jurisdiction
  • Court's discretion
  • Pre-action disclosure in split trials
  • Pre-action disclosure post-issue
  • Pre-action disclosure of cross-border mediation evidence
  • Pre-action disclosure where the dispute will be resolved through arbitration
  • Pre-action disclosure in procurement cases

This Practice Note provides general guidance on, among other things, when it might be appropriate to make an application for pre-action disclosure under CPR 31.16, the two-stage approach of determining jurisdiction under CPR 31.16(3), and whether to exercise discretion, by reference to key authorities including Black v Sumitomo and Bermuda International. It also considers disclosure before proceedings have started in the context of split trials, the court’s jurisdiction to order pre-action disclosure once a claim form has been issued, pre-action disclosure of cross-border mediation evidence, pre-action disclosure where the dispute will be resolved through arbitration and pre-action disclosure in procurement cases.

This Practice Note should be read in conjunction with:

  1. Practice Note: Pre-action disclosure—the application

  2. Precedents: Drafting note for application notice for pre-action disclosure, Drafting note for application notice for pre-action disclosure–Commercial Court, Witness statement in support of application for pre-action disclosure and Order for pre-action disclosure

Note: where pre-action disclosure is sought against a third party to the proceedings or intended proceedings, see our guidance on Norwich Pharmacal Orders, namely:

  1. Practice Notes: Norwich Pharmacal orders (NPOS) and Norwich Pharmacal order—procedure for application

  2. Precedents: Claim form—Norwich Pharmacal order, Drafting note for application notice for a Norwich Pharmacal order, Witness statement in support of application for a Norwich Pharmacal order and Order for a Norwich Pharmacal order

You should also consider if the proceedings will