Ittihadieh v Metcalfe & Ors (Rev 1)

An application for pre-action disclosure under Civil Procedure Rules 1998, rule 31.16, requires satisfaction of the rule’s jurisdictional conditions and then a discretionary assessment of whether disclosure is desirable. The discretion is fact-sensitive. Relevant considerations include the nature and clarity of the alleged injury, the identification of the issues, the nature and scope of the documents, pre-action protocol compliance, and the applicant’s ability to formulate a claim without disclosure.

Disclosure should be refused where allegations are speculative, vague and unsupported, the request amounts to a roving inquiry, or the applicant can plead any viable claim without the documents. Serious conspiracy allegations require particular caution, especially where loss is unparticularised.

The applicant, a leaseholder, sought pre-action disclosure from six respondents connected with a right-to-manage company. He alleged that they had conspired to delay a licence to alter his flat and sought disclosure of correspondence concerning the application.

The application was made under section 33(2) of the Senior Courts Act 1981 and rule 31.16 of the Civil Procedure Rules 1998. The respondents disputed the clarity and viability of the proposed conspiracy claims, the applicant’s loss, and the desirability of disclosure.

1. Application dismissed. Although the applicant and respondents were potentially parties to subsequent proceedings, and the documents would fall within standard disclosure if proceedings were issued, the discretionary requirement under rule 31.16(3)(d) was not satisfied.
2. The four threshold requirements under rule 31.16 are whether the respondent and applicant are likely to be parties to subsequent proceedings, whether the documents would fall within standard disclosure, and whether early disclosure is desirable to dispose fairly of the anticipated proceedings, assist settlement, or save costs. The term likely means no more than may well in the relevant context. There is no separate jurisdictional arguability threshold, although lack of any viable claim may justify refusal in the exercise of the discretion.
3. Applying the approach in Black v Sumitomo [2001] EWCA Civ 1819, the determinative discretionary considerations were the speculative nature of the alleged injury and loss, the extreme vagueness of the complaint, the intrusion into private correspondence, inadequate pre-action explanation and the applicant’s ability to plead any viable claim without disclosure. The limited extent of the documents was the only factor favouring the application.
4. The proposed conspiracy claim was unsupported by the contemporary documents. Losses were vague and unparticularised, and the applicant had not shown that the alleged delay caused compensable loss. Disclosure was unlikely to resolve the dispute and would operate as a fishing expedition rather than focused pre-action investigation.
5. The judge expressed substantial reservations, though not necessary to the disposal of the application, about whether breach of contract could constitute unlawful means in a conspiracy claim against directors merely because they caused a company to breach its contractual obligations. A conspiracy to injure claim also requires predominant purpose to injure the claimant, which was not supported by the material.

First-instance decision. No appellate history is stated in the judgment.