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

Once the jurisdictional requirements for pre-action disclosure are satisfied, the court retains a discretion whether to order disclosure. The jurisdictional question should be separated from the discretionary question. There is no formal jurisdictional requirement that the proposed claim be arguable, although its apparent strength may be highly relevant to discretion.

Disclosure must be focused and strictly necessary. The court may order searches directed to particular documents and their publication, but should refuse a broad search which would amount to fishing for possible causes of action. Open justice remains the general rule, although access to confidential material and the court file may be restricted where necessary.

The applicants, a genealogical research company and its directors, sought pre-action disclosure from a competing company and its managing director under CPR 31.16. They had received copies of two emails containing allegedly defamatory material and information said to have been processed unlawfully. They sought focused searches concerning the emails and wider searches of the respondents’ electronic database.

The respondents accepted that a focused order could be made but opposed the wider searches. The application also sought private proceedings, reporting restrictions, anonymity and restrictions on access to the court file. The central issues were whether the statutory and procedural conditions for pre-action disclosure were met and how the court should exercise its discretion.

1. Pre-action disclosure. The court ordered focused disclosure concerning the two identified emails, including by whom they were sent and to whom they were sent, and searches for the complained-of passages being forwarded to others. This was appropriate because the material might support claims in libel or for unlawful processing of data and disclosure could assist resolution of the dispute.
2. Jurisdiction and discretion. Under section 33(2) of the Senior Courts Act 1981 and CPR 31.16(3), the court first considers whether the jurisdictional conditions are satisfied and then whether disclosure should be ordered as a matter of discretion: Black v Sumitomo Corp [2001] EWCA Civ 1819; [2002] 1 WLR 1562. There is no formal jurisdictional requirement of arguability, although the apparent arguability of the proposed claim is relevant to discretion: Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585; [2014] 1 WLR 2283.
3. Limits of disclosure. Applications should be limited to what is strictly necessary. The principles governing disclosure and further information in defamation claims, including the prohibition on fishing for causes of action, informed the exercise of discretion: Barham v Lord Huntingfield [1913] 2 KB 193; CHC Software v Hopkins & Wood 1993 FSR 241; Best v Charter Medical of England [2001] EWCA Civ 1588; [2002] EMLR 18. The wider proposed searches would capture numerous irrelevant documents and were refused.
4. Open justice and file access. The hearing was conducted in public. Access to the court file and transcript was restricted, with applications for access to be made on notice, because protected material had been referred to and the court needed to assess whether disclosure was appropriate.

The application was granted in part. Focused pre-action disclosure and searches were ordered; the wider search was refused. Protective provisions concerning legal privilege and commercial confidence were incorporated into the order.