Jet Airways (India) Ltd & Ors v Barloworld Handling Ltd

Under Civil Procedure Rules 1998, r 31.16, pre-action disclosure does not require the applicant to establish a minimum level of arguability or a prima facie case. The jurisdictional conditions are those stated in r 31.16(3). In particular, the parties must be likely to be parties to subsequent proceedings, in the sense explained in Black v Sumitomo Corpn, and the documents must fall within the respondent’s prospective standard disclosure duty. The court’s discretion then requires an assessment of all the circumstances, including the strength of the proposed claim, the likely contribution of disclosure, the issues, and the burden imposed. A speculative claim may justify refusal as a discretionary matter, but does not bar jurisdiction. An appellate court should be slow to interfere with the first-instance judge’s assessment.

A warehouse fire destroyed the respondents’ cargo-handling depot and its contents. Expert investigations indicated that the fire had started in one of four forklift trucks leased to Servisair by an associated company of Barloworld, while Barloworld had undertaken maintenance work.

The respondents sought pre-action disclosure under Civil Procedure Rules 1998, r 31.16, of maintenance records, manufacturer’s instructions, complaints, and related incident reports. Burton J ordered disclosure: [2012] EWHC 3364 (Comm). Barloworld appealed, arguing that the proposed claim was speculative, that the court lacked jurisdiction, and that the order was too broad. The central issues were whether r 31.16 imposed an arguability threshold and whether the order was a proper exercise of discretion.

1. Appeal dismissed. The order for pre-action disclosure was upheld.
2. The jurisdiction under section 33(2) of the Senior Courts Act 1981, reflected in Civil Procedure Rules 1998, r 31.16, depends on the conditions expressly stated in r 31.16(3). Following Black v Sumitomo Corpn, “likely” in r 31.16(3)(a) and (b) means less than probable: it is enough that, if proceedings were commenced, the applicant and respondent would likely be parties to them.
3. Smith v Secretary of State for Energy and Climate Change displaced the approach in Kneale v Barclays Bank Plc which treated a minimum arguability threshold, or a claim more than a merely speculative punt, as a condition of jurisdiction. The observation in Smith that an applicant might show reason to believe in a compensatable injury concerned the discretionary stage, not jurisdiction.
4. On the evidence, the respondents’ case was more than merely speculative in any event. There was provisional expert evidence pointing to poor maintenance as a causal factor, and the documents sought could help establish the cause of the fire. The appellant was likely to be a party to any proceedings, including on an alternative basis, and the documents would fall within standard disclosure.
5. The decision whether disclosure was desirable to resolve the dispute or save costs, and the proper scope of the order, involved an evaluative exercise for the first-instance judge. The strength of the case, the issues, the likely contribution of disclosure, and the burden on the respondent were relevant. No proper basis for appellate interference was shown.

• Court of Appeal (Civil Division): appeal by Barloworld Handling Ltd dismissed and Burton J’s pre-action disclosure order upheld, [2014] EWCA Civ 1311.
• High Court (Queen’s Bench Division, Commercial Court): Burton J ordered pre-action disclosure under Civil Procedure Rules 1998, r 31.16, [2012] EWHC 3364 (Comm).