Hutchinson 3G UK Ltd v O2 (UK) Ltd & Ors

Pre-action disclosure under CPR 31.16 requires a focused request for documents which are more probably than not within the scope of standard disclosure in the anticipated proceedings. It is insufficient that documents may be relevant background material or may lead to a train of inquiry. The desirability requirement is cumulative and normally requires circumstances outside the usual run of disputes. A speculative claim, extensive unfocused requests, substantial cost, likely duplication after pleadings and confidentiality difficulties may justify refusing both jurisdiction and discretion to order disclosure.

Hutchinson 3G UK Ltd sought pre-action disclosure from four mobile network operators under section 33 of the Supreme Court Act 1981 and CPR 31.16. It alleged that the existing mobile number portability system restricted competition and that the respondents had acted concertedly, contrary to Article 81(1) EC and section 2 of the Competition Act, and had abused dominant positions contrary to Article 82 EC and section 18.

The respondents disputed the merits and contended that the requests were too broad to satisfy CPR 31.16(3)(c), were not desirable under CPR 31.16(3)(d), and should be refused in any event. The central issues were whether the requested documents would fall within standard disclosure and whether pre-action disclosure was desirable.

1. Application dismissed. The court held that the application failed both cumulative jurisdictional requirements under CPR 31.16(3)(c) and (d), and would in any event have been refused as a matter of discretion.
2. Under CPR 31.16(3)(c), the applicant had to show that it was more probable than not that the requested documents would fall within the scope of standard disclosure on the issues likely to arise. The test was more stringent than the corresponding test under CPR 31.17 because the applicant was better placed to identify documents held by a prospective party. Requests for broad classes containing material which might merely be relevant to the story or lead to further inquiry were insufficient (paras [38]-[52]).
3. The request was inadequately focused. It covered seven years, electronic and hard-copy material, and approximately 80 classes of documents, at an estimated cost approaching £1 million overall. It could not be concluded that every document within the classes would be relied on by the respondents or would adversely affect their cases (paras [44]-[51]).
4. The desirability requirement was also not met. Although disclosure might generally be useful for settlement, pleading or costs purposes, the circumstances had to be outside the usual run. A speculative hope of finding a smoking gun was insufficient, particularly where the applicant could already plead its case and disclosure was unlikely to resolve the difficult issues of liability or quantum (paras [53]-[59]).
5. Discretion would likewise have been refused. The court regarded it as intrinsically unsatisfactory to permit litigation to proceed without identifying the issues first. The scale and cost of the proposed exercise, duplication after pleadings, probable confidentiality disputes and absence of sufficient benefit all weighed decisively against an order (paras [60]-[64]).