This Practice Note considers CPR 14, which deals with admissions, and in particular CPR 14.3 which concerns admissions made under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the RTA Protocol), the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (the EL/PL Protocol) or the Pre-Action Protocol for Personal Injury Claims Below the Small Claims Limit in Road Traffic Accidents (the RTA Small Claims Protocol). Historic versions of CPR 14 and CPR PD 14 The CPR provisions relevant to admissions were amended with effect from 1 October 2023. In particular, CPR 14 was revised extensively and Practice Direction 14 was deleted. Judgments which pre-date the amendments coming into force on 1 October 2023 may therefore include reference to the old provisions and numbering and should be approached with some caution in light of the changes made. For further information, see: • LNB News 17/07/2023 62—Civil Procedure (Amendment No 3) Rules 2023 • LNB News 18/07/2023 98–157th and 158th Practice Direction and Pre-Action Protocol

ARCHIVED: This Practice Note is for historical reference. It considers pre-action behaviour in non-protocol cases under the Practice Direction—Pre-Action Conduct, which was in force prior to 6 April 2015. For information on the Practice Direction Pre-Action Conduct and Protocols, which replaced the Practice Direction-Pre-Action Conduct and has been in force since 6 April 2015, see Practice Note:Pre-action behaviour in non-protocol cases—Practice Direction Pre-Action Conduct and Protocols. Practice Direction—Pre-Action Conduct If the claim does not fall within any of the protocols, follow the principles set out in the Practice Direction—Pre-Action Conduct before proceedings are issued (para 2.1). For information on the different protocols, to determine if there are any applicable to your claim, see: The pre-action protocols and when they apply—Protocols in force prior to 6 April 2015. The Practice Direction will not apply to (para 2.2): • applications for the court to approve a consent order • applications for an order where there is no other party to engage with • most applications for directions by a trustee or other fiduciary • applications where

This Practice Note explains when the Practice Direction Pre-Action Conduct and Protocols (the Practice Direction) applies and sets out its principles and purpose. It considers a claimant’s letter of claim and the defendant’s response to it, as well as provisions relating to alternative dispute resolution (ADR), limitation and experts. The guidance in this Practice Note is focused on the Practice Direction. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see further below. When does the Practice Direction on Pre-Action Conduct and Protocols apply? The Practice Direction sets out the conduct usually expected of parties prior to the issue of proceedings. It includes provisions that will apply in all cases, but is specifically stated to apply if none of the other more specific protocols are relevant to your claim (see Practice Direction Pre-Action Conduct and Protocols, para 2). For details of all in force pre-action protocols, see Practice Note: The pre-action protocols and when they apply. Objectives Before commencing

An order for disclosure of documents or inspection of property before a claim has been made.

Private Client analysis: The pre-action phase in probate disputes is critical to both sides. For potential claimants it is an opportunity to gather and establish whether concerns are justified. For potential defendants it may be an opportunity to dispel myths or resolve those concerns. How requests for information, whether for a full Larke v Nugus response or for the Will file, are framed and responded to can have important implications for recovery of costs if an application for pre-action disclosure is ultimately required as this case illustrates. Written by James Davies, barrister and Mediator at New Square Chambers.

The Commercial Court has held that a respondent to an application for pre-action disclosure should pay some of the applicant's costs, notwithstanding the general rule that a respondent is entitled to recover costs associated with pre-action disclosure. The court order, which is different to the normal costs order, was made because as time went on the respondent's behaviour became unreasonable in refusing to disclose the documents requested, being draft audit reports, which the court held clearly fell with the pre-action protocol.

This Practice Note sets out a selection of illustrative cases regarding pre-action disclosure under CPR 31.16. It provides a demonstration of the diverse range of factual scenarios and issues that may arise when making an application for pre-action disclosure. For more guidance on the approach that the courts take when deciding whether to grant such applications, see Practice Note: Pre-action disclosure—requirements and the courts' approach. For general guidance on pre-action disclosure, see: Pre-action disclosure and Norwich Pharmacal—overview. Case details and new analysis Principle/facts Comments Benski v Pulse Films Ltd [2026] EWHC 2280 (Comm)3 September 2026 The applicant applied for pre-action disclosure pursuant to CPR 31.16 and section 33(2) of the Senior Courts Act 1981.The applicants contended that they had a claim arising out of a substantial unpaid debt and advanced allegations of fraudulent misrepresentation and unlawful means conspiracy against the respondents.The application was not successful. The court refused to make an order for pre-action disclosure, mainly due to the ‘uncertainty surrounding the formulation of the claim or complaint so far articulated by the [a]pplicants’

The purpose of pre-action disclosure An applicant may ask a court to order that a potential defendant to civil proceedings should disclose to them (before proceedings have begun) documents likely to be in the potential defendant’s control that they would be required to disclose as part of standard disclosure in a claim. It is therefore a compulsory early form of disclosure. The court has jurisdiction to make such an order under section 33(2) of the Senior Courts Act 1981 and CPR 31.16. The court must decide if it has the power to do so (the threshold requirements being satisfied) and then consider whether it ought to do so (exercising its discretion). An application could be made by a potential defendant against a potential claimant although this is unusual in practice. Although the proposed claim has to be ‘more than a merely speculative punt’ (Moore-Bick LJ in Jet Airways (India) Ltd v Barloworld Handling Ltd), in some cases an applicant will be applying in order to bolster the strength of its potential claim. The applicant

This Practice Note provides guidance on CPR 31.16 pre-action disclosure applications, where the applicant and respondent are likely to be parties to any subsequent proceedings. It provides guidance on how to make such an application for disclosure before proceedings have started including the application notice, evidence in support of the pre-action application and the draft order. The response by the respondent when opposing the application is also discussed. 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 that the courts take when deciding whether to grant such applications and specific discussion of pre-action disclosure in different circumstances, see Practice Note: Pre-action disclosure—requirements and the courts' approach. For more guidance on the major aspects of the court’s jurisdiction under CPR 31.16, see Practice Note: Pre-action disclosure—key considerations and cases. Making an application for pre-action disclosure An application for pre–action disclosure is an application for a court order—the basic procedure is therefore set out in CPR 23 and CPR PD 23A. Guidance

This Practice Note identifies when it might be appropriate to make an application for pre-action disclosure under CPR 31.16. It also explains, by reference to key authorities, the two-stage approach the courts take when deciding whether to make such an order under CPR 31.16(3): (1) does it have jurisdiction, ie the four conditions under CPR 31.16(3)(a), CPR 31.16(3)(b), CPR 31.16(3)(c) and CPR 31.16(3)(d) have been met and, if so, (2) should it exercise its discretion to make the order. 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 where the dispute will be resolved through arbitration and pre-action disclosure in procurement cases. This Practice Note should be read in conjunction with Practice Notes: Pre-action disclosure—making an application and Pre-action disclosure—key considerations and cases. The court’s power to order pre-action disclosure The courts’ power to order disclosure before proceedings have started, ie ‘pre-action disclosure’, will depend on the court in which the application is

Codes of practice for pre-litigation conduct.

The TCC has re-emphasised that parties should not use pre-action protocols to gain a tactical advantage in a dispute. This is particularly so in smaller disputes where it is important for solicitors to be pragmatic in their dealings concerning pre-action protocols.