Northumbrian Water Ltd v British Telecommunications Plc

Pre-action disclosure is exceptional and requires satisfaction of each condition in CPR 31.16(3), followed by a discretionary assessment. The documents sought must fall within the scope of standard disclosure and early disclosure must be desirable to dispose fairly of the anticipated proceedings, assist settlement or save costs. The court should consider the nature of the loss, the clarity of the issues, the documents sought, any pre-action protocol and the applicant’s ability to advance its case without disclosure. Peripheral documents, particularly those sought by a prospective defendant merely to develop a possible defence, will generally not justify altering the usual sequence of disclosure. Core documents capable of materially affecting liability may justify an order.

A water main allegedly damaged a high-security underground service tunnel being constructed for British Telecommunications Plc. The prospective claim led Northumbrian Water Ltd to seek pre-action disclosure under CPR 31.16 of documents concerning the tunnel’s design, construction, contracts, health and safety arrangements and related investigations.

The defendant had provided some documents but disputed the need for further disclosure. The court considered whether the statutory conditions for pre-action disclosure were met in relation to seven categories and, if so, how its discretion should be exercised.

1. The application was allowed for categories 4, 5 and 7. It was refused for categories 1, 2, 3 and 6. The defendant was ordered to make enquiries and report within seven days whether site diaries existed for the tunnelling works.

2. Following Black & Ors. v. Sumitomo Corp [2002] 1 WLR 1562, an applicant must establish each of the four conditions in CPR 31.16(3)(a)–(d). The respondent and applicant must be likely parties to subsequent proceedings; the respondent’s standard disclosure duty must extend to the documents sought; and pre-action disclosure must be desirable to dispose fairly of the anticipated proceedings, assist resolution without proceedings or save costs.

3. The discretion is broad and depends on all the circumstances. Relevant considerations, identified by reference to Black & Ors. v. Sumitomo Corp and Bermuda International Securities Ltd. v. KPMG [2001] Lloyd’s Rep PN 392, include the nature of the loss, the clarity of the issues, the nature of the documents, the relevance of any protocol or pre-action enquiries and the applicant’s opportunity to advance its case without early disclosure.

4. Categories 1, 2, 3 and 6 failed because the evidence did not establish that the documents existed, fell within standard disclosure or would make early disclosure desirable. Even if the relevant conditions had been met, the court would have exercised its discretion against ordering disclosure. These were peripheral documents sought by a potential defendant to establish a possible defence.

5. Design documents, the correct tunnel-specific health and safety plan, and the main contract and subcontract documents were core documents. They could materially affect whether the tunnelling caused or contributed to the burst water main, assist the pre-action protocol and promote settlement. The conditions and discretion therefore favoured disclosure.