Pre-action disclosure—the application

This Practice Note provides guidance on CPR 31.16 pre-action disclosure applications, where the applicant and respondent are likely to be parties to subsequent proceedings. In particular, it highlights the exceptional nature of pre-action disclosure orders. Leading authorities on pre-action disclosure, including Black v Sumitomo, are considered and guidance provided on how to make such an application for disclosure before proceedings have started. In particular, it addresses what to file under the CPR 23 application in this context, including the Form N244 (N244 CC for the Commercial Court) and the evidence required in the applicant’s witness evidence in support of the pre-action application. The response by the respondent when opposing the application is also discussed. Finally the costs consequences of an application for pre-action disclosure are considered.

For detailed guidance on when it might be appropriate to make an application for pre-action disclosure, the approach the courts take when deciding whether to grant such applications as well as specific discussion of pre-action disclosure in different circumstances, see Practice Note: Pre-action disclosure—requirements and the courts' approach.

You should also consider if the proceedings will be subject to the disclosure pilot in the Business and Property Courts. For further guidance, see Practice Note: Business and Property Courts—the disclosure pilot scheme.