Briggs & Forrester Electrical Ltd v Southfield School for Girls & Anor

An application for pre-action disclosure under Civil Procedure Rules 1998, rule 31.16, requires separate consideration of the four jurisdictional conditions and the court’s discretion. The applicant must identify prospective issues sufficiently clearly to show that the documents would fall within standard disclosure. Satisfying that condition does not automatically establish desirability. The court must consider whether disclosure would fairly dispose of the anticipated proceedings, assist settlement or save costs, having regard to all the circumstances, including any applicable pre-action protocol. Wide, peripheral or speculative categories should generally be refused. Disclosure may nevertheless be ordered for focused documents materially bearing on quantum where it is likely to assist resolution or save costs.

The applicant contractor sought pre-action disclosure from the prospective claimants in anticipated Technology and Construction Court proceedings concerning extensive asbestos contamination at a school following electrical works and tile removal by a subcontractor. The application originally covered 55 categories and was reduced to 32.

The applicant admitted contractual liability but disputed causation and the extent of the remedial works and claimed losses. The parties had exchanged letters under the Construction and Engineering pre-action protocol, but no pre-action meeting had occurred. The central issues were whether the requested documents would be disclosable by standard disclosure and whether pre-action disclosure was desirable under rule 31.16.

1. The application was allowed only in respect of the quantum documents in Part 3 Categories A, B, C, E, F, H, J, N and O. It was dismissed as to all other categories.
2. Under rule 31.16, the applicant had to establish separately that both parties were likely to be parties to subsequent proceedings, that the documents would fall within standard disclosure if proceedings had begun, and that pre-action disclosure was desirable for one of the purposes in rule 31.16(3)(d). The parties satisfied the first two party-status requirements.
3. Following the approach in Black v Sumitomo Corporation [2002] 1 WLR 1562, the court treated the standard-disclosure and desirability requirements as distinct. The fact that documents might be disclosable did not automatically establish that pre-action disclosure was desirable.
4. For standard disclosure, the likely issues and the prospective cases had to be sufficiently clear. Categories which were diffuse, excessively broad or insufficiently connected with the pleaded or protocol-stage issues could not be ordered merely because some documents within them might be relevant. The court accepted that the categories expressly referred to in the correspondence, and documents going to quantification, were generally capable of being disclosable.
5. In deciding desirability and exercising its discretion, the court considered the possible effect on settlement and costs, the nature and relevance of the documents, the parties’ evidential material, the opportunity to advance the claim without disclosure, and the ongoing protocol process. The Engineering and Construction protocol did not require large-scale disclosure during the protocol period; its reference to disclosure concerned key documents and later agreement of disclosure parameters.
6. The quantum documents were highly relevant to the claimed loss. Their disclosure could assist auditing the claim and save costs. The respondents had offered access to some material, but had not provided a helpful schedule explaining the figures in the letter of claim. Formal disclosure was therefore appropriate.