Anglia Research Services Ltd & Anor v Finders Genealogists Ltd & Anor

An order for pre-action disclosure may be made only where the statutory and procedural conditions are satisfied. The court should first determine whether the jurisdictional threshold is met, including whether disclosure is likely to assist fair disposal, settlement or costs-saving. It should then exercise its discretion by examining all the circumstances.

The issue of proceedings does not necessarily prevent disclosure in relation to distinct causes of action contemplated in later proceedings. Separate defamation publications may constitute separate causes of action, and harassment concerns a course of conduct rather than isolated incidents. Where the seriousness and extent of alleged defamation or harassment cannot reasonably be assessed without disclosure, early disclosure may be proportionate and desirable.

The claimants sought pre-action disclosure under CPR 31.16 and section 33 of the Senior Courts Act 1981 in contemplation of defamation and harassment proceedings against commercial rivals.

A defamation claim had been issued, but not served, before the application was heard. The court therefore considered whether it retained jurisdiction, distinguishing the causes of action already included in that claim from additional causes of action contemplated in a proposed second action. The central issues were whether the second action would be abusive, whether the documents would fall within standard disclosure, and whether early disclosure was desirable.

1. Jurisdiction. The court adopted the two-stage approach in Black v. Sumitomo [2001] EWCA Civ 1819. First, it asked whether the requirements of section 33 of the Senior Courts Act 1981 and CPR 31.16 were met. If so, it had to decide at the second stage whether to exercise its discretion.
2. The court had no jurisdiction to grant pre-action disclosure in respect of causes of action already sued upon, because proceedings had been issued before the application was heard. It did have jurisdiction in relation to distinct causes of action contemplated in a proposed second action. The court followed the approach described obiter in Personal Management Solutions Ltd v Gee 7 Group Ltd, namely that a continuing first action does not prevent an application relating to a separate, non-abusive second action.
3. A second action would not be an abuse of process. Separate publications may constitute separate causes of action in defamation. Harassment is concerned with a course of conduct or campaign comprising two or more incidents, so proceedings may include incidents also relied upon in existing defamation proceedings.
4. The stage-one requirements were met. The parties were likely to be parties to subsequent proceedings. The documents sought would be disclosable under standard disclosure because they could support the claimants’ case and adversely affect the defendants’ case. There was a real prospect that disclosure would assist fair disposal, settlement or costs-saving.
5. At stage two, the court placed particular weight on the seriousness thresholds for both causes of action. Section 1 of the Defamation Act 2013 required serious harm to reputation and, for trading corporations, financial loss. The civil harassment claim likewise required conduct of sufficient gravity, applying Majrowski v Guys and St Thomas’s NHS Trust [2006] UKHL 34. Disclosure could reveal the extent of publication and damage, which was relevant to whether a viable claim existed at all.
6. The proposed order was neither oppressive nor disproportionate. The claimants had a strong prima facie case, the defendants would ordinarily have to disclose the material if proceedings were issued, and the search was reasonably straightforward. Pre-action disclosure was therefore ordered, limited to the distinct causes of action contemplated in the proposed second proceedings.