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Pre-action disclosure

Grok has stated:

Recent decisions on pre-action disclosure under CPR 31.16 (the rule allowing courts to order disclosure of documents from a likely future defendant before proceedings are issued) remain relatively rare in fully reasoned High Court judgments, as most applications are dealt with summarily or at lower levels. Courts apply a strict two-stage test: first, jurisdiction (e.g., both parties likely to be involved in future proceedings, documents within standard disclosure scope, and disclosure “desirable” to fairly dispose of proceedings, resolve without litigation, or save costs); second, discretion (considering proportionality, overriding objective, and avoiding “fishing expeditions” — broad/vague requests to hunt for a claim rather than support a clear one).

The January 13, 2026 blog post on Civil Litigation Brief (by Gordon Exall) highlights one such rare, fully reasoned High Court decision from early 2026. In this unnamed case (full details paywalled, no public citation like [2026] EWHC XXX available yet), the court granted the order for pre-action disclosure, explicitly ruling it was not a fishing expedition. Key takeaways from the commentary:

• The application satisfied the CPR 31.16 tests with strong supporting evidence and focused requests (not overly broad).

• The judge applied the principles from foundational cases like Black v Sumitomo Corp [2001] EWCA Civ 1819 (real prospect of fair proceedings or cost savings) and exercised discretion positively because it was an “appropriate case.”

• Important lessons: Applications succeed when targeted, evidenced, and proportionate — courts won’t “prune” vague requests or allow speculative fishing.

This contrasts with many refusals where requests are seen as too wide or premature.

Other Recent/Related Cases (2024–2025, as 2026 judgments are emerging)

• Dennis and Ors v Queenwood Golf Club Limited [2024] EWHC 3191 (Ch) (December 2024): High Court ordered pre-action disclosure in unfair prejudice proceedings. Applicants (shareholders) got documents/instructions given to Deloitte for a report with gaps/inconsistencies. Judge found “unusually powerful grounds” that disclosure would help resolve without proceedings — a good example of success when evidence shows clear need and focus.

• Holt v Allianz Insurance Plc [2023] EWHC 790 (discussed in 2025 commentary): High Court appeal on pre-action disclosure in a credit hire dispute. Emphasized the “likely” parties test under CPR 31.16(2)(a)–(b); application failed partly due to uncertainty about future proceedings. Highlights strict jurisdictional hurdles in insurance/credit hire contexts.

• Older but frequently cited for refusal trends: Carillion Plc v KPMG LLP [2020] EWHC 1416 — Commercial Court refused disclosure of audit papers in anticipated negligence claim, calling it not “the norm” despite potential relevance (disproportionate in commercial/professional cases).

General Trends in 2025–2026

• Pre-action disclosure is exceptional in commercial/Business & Property Courts contexts (especially under PD 57AD disclosure scheme), where courts lean against early specific disclosure unless truly necessary (see Balfour Beatty v Broadway Malyan [2022] EWHC 2022 (TCC) principles carried forward).

• Success often turns on specificity (narrow requests), evidence (why documents are key), and proportionality (cost savings/fair resolution).

• “Fishing expedition” remains a common rejection ground — courts won’t order broad trawls.