Pineway Ltd v London Mining Plc

Pre-action disclosure is available only where the statutory and procedural conditions are satisfied. The applicant must show a properly arguable substantive claim with a real prospect of success, and identify documents which would fall within standard disclosure if proceedings were issued. A broad request for documents which merely might assist a speculative claim, or lead to a train of enquiry, is insufficient. The desirability condition requires a real prospect that disclosure would fairly dispose of anticipated proceedings, assist settlement or save costs; although the threshold is low, exceptional features may be needed to take a case outside the usual run. The court must then exercise its discretion, considering the merits, cost, conduct, and the appropriate forum.

Pineway Limited applied for pre-action disclosure from London Mining Company Limited and London Mining Plc. The application concerned documents relating to London Mining’s alleged efforts to obtain licences connected with a mining lease, port and railway in Sierra Leone.

Pineway relied on purported assignments from Tecsbaco. London Mining disputed their authenticity and validity, contended that the assignments were champertous, and denied any realistic prospect of a claim based on the contractual obligation to use reasonable commercial endeavours. The central questions were whether the jurisdictional conditions in section 33 of the Senior Courts Act 1981 and CPR 31.16 were met, and whether disclosure should nevertheless be ordered in the exercise of discretion.

1. Application refused. The court held that Pineway had not established the jurisdiction to order pre-action disclosure and, in any event, the discretion should not be exercised in its favour.
2. For CPR 31.16(3)(a) and (b), it was sufficient that the parties were likely to be parties to later proceedings if proceedings were issued. It was not necessary to show that proceedings themselves were likely to be issued. However, a properly arguable underlying claim with a real prospect of success remained necessary. Pineway’s uncertainty about whether it had any claim did not satisfy that requirement.
3. The assignments presented serious authenticity, authority and validity difficulties. The evidence did not establish a properly arguable claim with a real prospect of success. The proposed claim based on reasonable commercial endeavours was also unsupported by evidence identifying any step which London Mining should have taken or had wrongly taken.
4. Documents sought under CPR 31.16 must be documents, or classes of documents, which would fall within the respondent’s standard disclosure duty under CPR 31.6. A request cannot obtain broad categories containing documents which would merely be relevant background or might lead to further enquiries. The application was an admitted fishing expedition and was insufficiently focused.
5. “Desirable” requires, at the jurisdictional stage, a real prospect that disclosure would fairly dispose of anticipated proceedings, assist resolution without proceedings, or save costs. The jurisdictional and discretionary stages must remain distinct. The low threshold does not mean that disclosure should routinely be granted; in a speculative and broadly framed commercial claim, circumstances must take the case outside the usual run.
6. In exercising discretion, the court considered the weak merits, the cost and management burden of the requested exercise, Pineway’s conduct and lack of frankness, and the existence of Sierra Leone proceedings and an agreed non-exclusive Sierra Leone jurisdiction. The centre of gravity of the dispute and the relevant documents and witnesses were in Sierra Leone.