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

Pre-action disclosure under Civil Procedure Rules 1998, r 31.16, cannot substitute for pleading. The applicant must show that the documents sought would probably fall within standard disclosure on the issues likely to arise. A document class is impermissible if only some documents within it would be disclosable. Disclosure must also be reasonably necessary or useful for a specified purpose, and the circumstances must be outside the usual run. In exercising discretion, the court should consider whether the claim can be pleaded on existing material, its speculative nature, the breadth and cost of the request, likely duplication after pleading, and confidentiality problems. A large, unfocused request concerning a proposed competition claim failed both jurisdictional thresholds and was refused.

Hutchinson 3G UK Ltd applied for pre-action disclosure from four competing mobile network operators under section 33 of the Supreme Court Act 1981 and CPR r 31.16. It alleged that the existing mobile number portability system impeded competition and that the respondents had acted in concert, or abused dominant positions, contrary to Article 81(1) EC, Article 82 EC and sections 2 and 18 of the Competition Act 1998.

The request covered extensive classes of electronic and hard-copy documents over several years. The respondents argued that the claim was speculative and that the documents would not necessarily fall within standard disclosure. The central issues were whether CPR r 31.16(3)(c) and (d) were satisfied and whether an order should be made in the court’s discretion.

The applications were dismissed. Hutchinson 3G failed to establish either cumulative jurisdictional requirement under CPR r 31.16(3), and the court would in any event have refused relief in the exercise of its discretion.

1. On the merits, the court should avoid detailed analysis of issues likely to emerge in future proceedings. The proper approach is a broad case-management assessment of the nature and shape of the potential claim and likely defences, as explained in Total E & P Soudan v Edmonds [2007] EWCA Civ. 50. Some analysis remained necessary to identify the issues on which disclosure might later be required.
2. Under CPR r 31.16(3)(c), the applicant had to show that it was more probable than not that the documents sought would fall within the respondents’ standard-disclosure obligations under r 31.6. The test was more stringent than the flexibility available under CPR r 31.17. Pre-action disclosure could not be obtained by requesting a class containing documents of which only some would be disclosable. Every document in the class had to satisfy the standard-disclosure test, and material relevant merely as background or as a line of inquiry was insufficient. The extensive and unrestricted requests failed this threshold. The principle was applied from Wakefield v Outhwaite [1996] 2 Lloyds Rep. 157.
3. Under CPR r 31.16(3)(d), desirability meant that disclosure was reasonably necessary or at least useful for disposing fairly of the anticipated proceedings, assisting resolution without proceedings, or saving costs. Since usefulness could be asserted in almost every dispute, the circumstances had to be outside the usual run. A speculative hope of finding decisive material was insufficient. The approach in Trouw UK Ltd v Mitsui & Co (UK) Plc [2006] EWHC 863 (Comm) was applied.
4. Even if jurisdiction existed, discretion would have been exercised against the order. Hutchinson 3G could plead its case on the material available, while liability and quantum remained speculative. The request covered around 80 classes over a seven-year period, would cost approximately £200,000 for each respondent, would largely duplicate later disclosure, and created substantial confidentiality risks. The cost-benefit analysis favoured refusal.