Attheraces Ltd & Anor v Ladbrokes Betting And Gaming Ltd & Ors

An application for pre-action disclosure under Senior Courts Act 1981, section 33(2), and CPR Part 31.16 requires more than a potential benefit from additional information. The applicant must establish the statutory and procedural conditions, including that the documents would fall within standard disclosure if proceedings had begun and that disclosure is desirable to dispose fairly of the anticipated proceedings, assist settlement or save costs.

The desirability requirement has a jurisdictional and a discretionary stage. Applications should identify the proposed documents with precision and be limited to what is strictly necessary. Pre-action disclosure is not warranted where the claimant already has enough information to plead and commence the proposed claim, or where disclosure is likely to delay and increase the cost of proceedings.

Attheraces Limited and Arena Leisure Limited sought pre-action disclosure from companies associated with Ladbrokes, Coral and Betfred, and from Sports Information Services. The applicants alleged that race commentaries had been produced or used unlawfully and sought information about their sources and production.

The evidence served in response substantially clarified how the commentaries had been created. The application was revised during the hearing, and Sports Information Services played no further part after agreeing terms with the applicants. The court considered whether the statutory and procedural requirements for pre-action disclosure were satisfied, particularly whether disclosure was needed to formulate or commence the anticipated claims and whether it would meet the objectives in CPR Part 31.16(3)(d).

1. The application was dismissed. The court held that the changes made to the scope of the application were not automatically fatal, but the applicants were not entitled to any relaxation of the applicable standard because their case had changed during the process.

2. The requirements in CPR Part 31.16(3)(a) and (b) were satisfied. The applicants and at least one respondent within each relevant business group were likely to be parties to subsequent proceedings, with “likely” meaning no more than “may well”.

3. Under CPR Part 31.16(3)(c), the applicants had to show that it was more probable than not that the requested documents would fall within standard disclosure if proceedings had begun. Where a class of documents was sought, every document in that class had to satisfy that criterion. Applications therefore had to be crafted with care and confined to what was strictly necessary.

4. CPR Part 31.16(3)(d) involved two stages. First, the court had to identify a real prospect in principle that disclosure would be fair, assist resolution without proceedings or save costs. Secondly, if that jurisdictional threshold was met, the court had to exercise its discretion on all the facts and in detail.

5. The applicants failed at the jurisdictional stage. They already knew enough to commence and plead claims against the relevant groups. Further information would at most have enabled more specific pleading or the addition of commentators as parties. It would not materially affect the strength of the proposed claims, settlement prospects or the fair disposal of proceedings. The same reasoning applied to the Betfred claims, including passing off and conspiracy. The uncertainty about the identity or status of alleged conspirators did not prevent a claim being framed.

6. The court additionally concluded that, if jurisdiction existed, it would have refused relief in its discretion. Further refinement of the document classes would have caused delay, interlocutory disputes and additional expense.