Smith v Secretary of State for Energy And Climate Change

An applicant for pre-action disclosure under rule 31.16 of the Civil Procedure Rules 1998 need not establish an arguable or prima facie claim as a jurisdictional condition. The express conditions in rule 31.16(3)(a)–(d) define the jurisdictional threshold.

The apparent viability of the proposed claim instead informs the court’s discretion. The court may ask whether there is some reason to believe that the applicant may have suffered compensatable injury and assess the degree of likelihood alongside the scope and burden of disclosure. Pre-action disclosure applications should not become mini-trials and should be determined swiftly and economically.

The appellant, a former coal-industry employee, alleged that prolonged underground exposure to noise without adequate protection had caused hearing loss. Before issuing proceedings, he sought disclosure of documents concerning workplace noise, the employer’s knowledge and hearing-protection measures.

A District Judge ordered disclosure under section 52(2) of the County Courts Act 1984 and rule 31.16 of the Civil Procedure Rules 1998. HHJ Langan QC allowed the respondent’s appeal and dismissed the application. Relying on Kneale v Barclays Bank Plc [2010] EWHC 1900 (Comm), he held that the appellant had not established a prima facie case exceeding a speculative claim.

The central issues were whether arguability formed part of the court’s jurisdiction and, if not, whether the District Judge had properly exercised his discretion.

1. Appeal allowed unanimously. Underhill LJ, with whom Floyd and Longmore LJJ agreed, held that rule 31.16(3) of the Civil Procedure Rules 1998 contains no jurisdictional requirement that an applicant establish an arguable or prima facie claim. Its express conditions are exhaustive. Under heads (a) and (b), the relevant question is whether the applicant and respondent are likely to be parties if proceedings are commenced, not whether proceedings or a successful claim are likely: paras [23]–[27].

2. The apparent viability of the proposed claim remains relevant at the discretionary stage. The preferable inquiry is whether there is some reason to believe that the applicant may have suffered compensatable injury and, if so, with what degree of likelihood. A wholly speculative claim may justify refusal, particularly where the requested disclosure would be onerous. This approach preserves the flexibility needed at a stage when disclosure may itself be necessary to determine whether a viable claim exists: paras [24], [28].

3. The District Judge had exercised the discretion permissibly. A person’s account of difficulties hearing television and telephone conversations could provide some reason to believe that hearing had deteriorated. That account, combined with many years of work in a noisy underground environment, provided some reason to believe both that hearing loss existed and that it might be noise-induced. An audiogram or medical opinion was not an indispensable prerequisite at the pre-action stage. The requested disclosure was confined to two workplaces and had not been shown to be unduly onerous: paras [29]–[34].

4. The Disease and Illness Pre-Action Protocol could not provide a shortcut around rule 31.16. Protocols do not have the status of rules, although an applicant’s lack of openness or co-operation may be relevant to discretion. Whether privilege or another legitimate reason justified withholding the screening audiogram had not been addressed below and could not be determined on the appeal: paras [35]–[36].

5. Longmore LJ added that pre-action disclosure applications are not mini-trials. They should be resolved swiftly and economically, without elaborate argument: para [39]. The District Judge’s order was restored, subject to incorporation of the agreed disclosure categories and timetable: para [37].

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and the District Judge’s disclosure order was restored: [2013] EWCA Civ 1585.
2. Leeds County Court, HHJ Langan QC: The respondent’s appeal was allowed and the application for pre-action disclosure was dismissed.
3. Leeds County Court, District Judge Buchan: The appellant’s application for pre-action disclosure was granted in respect of agreed categories of documents.