Personal Management Solutions Ltd & Anor v GEE 7 Group Ltd & Anor

An application for pre-action disclosure under Senior Courts Act 1981, section 33(2), and CPR 31.16 can be granted only while the relevant proceedings have not begun. Once a claim form has been issued, the court has no jurisdiction to make an order under the pre-action disclosure regime, even if the claim form has not been served and the application was made before issue.

Disclosure may instead be sought under CPR 31.12, but that is a different jurisdiction with different considerations. An application under CPR 31.16 need not be converted into an application under CPR 31.12 without notice and a fair opportunity for the respondent to address the applicable test. Reservation of costs in such circumstances is a case-management decision and involves no error of principle.

The appellants applied for disclosure against the respondents under section 33(2) of the Senior Courts Act 1981 and CPR 31.16. The application was presented as one for pre-action disclosure, but the appellants had issued a claim form before the application was heard by the Deputy Master. The claim form had not been served, and the respondents learned of its issue only shortly before the hearing.

The Deputy Master held that he no longer had jurisdiction under CPR 31.16, dismissed the application, reserved costs, and refused permission to appeal on costs. The appellants appealed on jurisdiction and sought permission to cross-appeal on costs. The central issues were whether pre-action disclosure remained available after issue of proceedings and whether the application should have been treated as one for specific disclosure under CPR 31.12.

1. Appeal dismissed. The Deputy Master correctly held that, on 2 June 2015, he had no jurisdiction to make an order under section 33(2) of the Senior Courts Act 1981 or CPR 31.16 because the relevant proceedings had already commenced on 5 March 2015.
2. Section 33(2) and CPR 31.16 are confined to disclosure before commencement of the relevant proceedings. Once proceedings exist, the ordinary disclosure provisions in CPR Part 31 apply. The separation avoids overlap and inconsistency between the two schemes. The question whether relevant proceedings exist is jurisdictional, rather than merely discretionary: Black v Sumitomo Corp [2002] 1 WLR 1562 was considered in that context.
3. If an application is made before proceedings commence but proceedings are issued before the hearing, the court has jurisdiction when the application is made but not when it is heard. The court retains jurisdiction to deal with costs and may make appropriate disclosure orders under other provisions of CPR Part 31.
4. The authorities relied on by the appellants did not establish a concurrent CPR 31.16 jurisdiction after proceedings had begun. Arsenal Football Club Plc v Elite Sports Distribution Ltd [2002] EWHC 3057 (Ch) was properly understood as involving an order under CPR 31.12. The later description in Alstom Transport v Eurostar International Ltd [2010] EWHC B32 (Ch) was mistaken. Roche Diagnostics Ltd v The Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) correctly explained the distinction.
5. The Deputy Master could have treated the application as one under CPR 31.12, but was entitled not to do so. The two rules involve different tests, and the respondents had no proper opportunity to address a specific-disclosure application. His approach was a case-management decision and disclosed no error of principle.
6. The cross-appeal was refused. The Deputy Master’s reservation of costs left all options open and was not shown to be legally erroneous.

• High Court (Chancery Division): Appeal from orders made by Deputy Master Cousins on 2 June 2015 dismissed. Permission to cross-appeal on costs refused.