Resthaven Properties Ltd v Kier Regional Ltd

Pre-action disclosure may be ordered where the parties are likely to be parties to subsequent proceedings, the documents would fall within standard disclosure, and early disclosure is desirable to dispose of the proceedings fairly, assist settlement or save costs.

Where documents are held by a third party, the court must be satisfied on the balance of probabilities that the prospective respondent has an enforceable right to inspect, obtain possession of or control them. The court must then decide whether disclosure is proportionate and practicable. Where performance may prove difficult, the order may require best endeavours and include liberty to apply.

Resthaven sought pre-action disclosure under CPR rule 31.16 concerning alleged defects in the cooling system of Building 12, Harbourside, Bristol. It requested outstanding input data supplied to a thermal-modelling consultant and the project model data files containing additional data generated by that consultant.

The parties were engaged in a pre-action protocol process and anticipated proceedings concerning compliance with the contractual cooling requirements. Kier contended that the input data had already been disclosed and that it lacked the necessary control over the project files, which remained with the consultant.

The central issues were whether the statutory and procedural conditions for pre-action disclosure were met, whether Kier had an enforceable right to obtain or inspect the project files, and what form of order was appropriate.

1. Input data. The input data supplied for the thermal model would fall within Kier’s standard disclosure obligation. The court was satisfied that early disclosure would enable the experts to work on a common footing, assist the fair resolution of the dispute and save costs. There was a justifiable concern that the informal process by which information had been supplied to the consultant had left some data unidentified. An order was therefore made requiring further disclosure of the input data, subject to the exceptions in the draft order (paras [11]–[18]).
2. Project model data files. For documents held by a third party, the relevant question was whether Kier had an enforceable right to inspect or obtain possession or control of them. That issue was to be decided on the balance of probabilities, having regard to the agreement, the evidence and any information about the third party’s position (para [22]).
3. The agreement between Kier and IES, comprising the quotation letter and purchase order, required the modelling work and associated reporting. Kier would therefore be entitled, if necessary, to obtain information concerning the additional parameters generated or assessed by IES. The inputted data formed part of Kier’s standard disclosure and was as essential as the original input data to the pre-action process (paras [23]–[27]).
4. The discretion to order disclosure was exercised. However, because the court had not heard directly from IES and practical difficulties might arise, the appropriate order was that Kier use its best endeavours to obtain and provide a copy of the project model data files, with liberty to apply (paras [28]–[29]).
5. Applying the general rule in CPR rule 48.1(2), Kier was awarded its costs of the application and of complying with the orders. The fact that disclosure was justified did not displace that rule (Costs judgment, paras [1]–[4]).

First-instance application under CPR rule 31.16. No appellate history is stated in the judgment.