Marine Services (Grimsby) Ltd v Associated British Ports

Pre-action disclosure requires a two-stage analysis. The applicant must first satisfy the jurisdictional conditions in CPR Part 31.16, including showing that disclosure is desirable for a specified purpose. The court must then decide whether to exercise its discretion to order disclosure.

Meeting the jurisdictional threshold does not ordinarily justify disclosure. The applicant must identify focused documents that would fall within standard disclosure and materially assist the anticipated litigation or its avoidance. Disclosure is generally inappropriate where the applicant can plead its case without it, where the request is broad or speculative, or where it seeks privileged, irrelevant or post-incident material.

The applicant sought pre-action disclosure concerning a collision between its vessels and an accommodation barge which had broken loose in a dock owned by the respondent. The applicant alleged that the respondent was liable as harbour authority or because it had assumed responsibility or control over the barge. The respondent denied liability and contended that the barge’s owner was the proper defendant.

The application sought documents concerning ownership, distraint and sale, re-mooring, weather, dock security, risk assessments and the incident. The central questions were whether the requirements of CPR Part 31.16 were satisfied and, if so, whether disclosure should be ordered.

1. Application dismissed. The applicant failed to establish the jurisdictional threshold for pre-action disclosure. Even if that threshold had been met, the court would have refused relief in the exercise of its discretion.
2. Pre-action disclosure involves a two-stage process. First, the applicant must satisfy the conditions in CPR Part 31.16(3), including the requirement that, if proceedings had begun, the respondent’s standard disclosure duty would extend to the documents sought. Secondly, the court must consider whether disclosure is desirable and whether its discretion should be exercised. The low jurisdictional threshold does not determine the discretionary question.
3. Requests for documents must be sufficiently focused and must relate to issues likely to arise in the anticipated proceedings. Parts of the application concerned privileged or potentially privileged material, irrelevant post-incident events, and documents outside the scope of standard disclosure. Those requests could not properly be ordered.
4. The documents concerning the respondent’s control of the barge were potentially within standard disclosure. However, the applicant could plead its case without them. It was not shown that the documents were necessary or vital to deciding whether to litigate or to formulate the claim, nor that disclosure would probably avoid litigation or produce a significant saving in costs.
5. The requests concerning weather forecasts, dock security and related matters were a fishing expedition. The applicant could establish the actual weather, available forecasts and the respondent’s alleged obligations without reversing the ordinary burden of pleading and proving the claim.
6. The application was too wide and unfocused, and the case was not exceptional or outside the ordinary run of cases. The approach was consistent with Black v Sumitomo Corporation [2001] EWCA Civ 1819, Bermuda International Securities Ltd v KPMG [2001] Lloyd's Rep PN 392, and the other authorities considered by the court.