Taylor Wimpey UK Ltd v Harron Homes Ltd

An application for pre-action disclosure under CPR Part 31.16 requires satisfaction of a jurisdictional threshold and then a separate discretionary assessment. The threshold is not high, but the court must consider whether disclosure is genuinely desirable for one of the rule’s stated purposes. The discretion is fact-sensitive. It should be exercised cautiously where the documents can be obtained through a contractually agreed expert determination or other ADR mechanism. Pre-action disclosure must not frustrate, impede or undermine that mechanism. The court may consider the likelihood that court proceedings and disclosure will ever occur, the parties’ participation in the pre-action protocol, the scope of the requested documents, and the costs and procedural context. The fact that the applicant may be a prospective defendant does not alter the jurisdictional threshold, although it may be relevant to discretion.

Taylor Wimpey UK Ltd applied under section 33(2) of the Senior Courts Act and CPR Part 31.16 for pre-action disclosure from Harron Homes Ltd concerning drainage design, as-built drawings and adoption correspondence. The parties’ Collaboration Agreement required disputes concerning their respective rights and obligations to be referred to expert determination. Harron had invoked that procedure and stated that it did not intend to commence High Court proceedings, while Taylor Wimpey resisted the expert process and raised jurisdictional objections.

The court accepted that the parties were likely to be parties to any subsequent proceedings and that the documents would fall within standard disclosure. The central issue was whether disclosure was desirable in the circumstances and whether the discretion should be exercised.

1. The application was dismissed. The jurisdictional requirements under CPR Part 31.16(3)(a)–(c) were satisfied, and the jurisdictional aspect of CPR Part 31.16(3)(d) was also crossed. The threshold was not a high one.
2. The court distinguished the jurisdictional threshold from the discretionary question. The fact that Harron currently stated that it would not issue High Court proceedings did not remove jurisdiction, but it was relevant to the discretionary assessment. The likelihood that the disclosure stage would ever be reached could properly be considered.
3. The discretion required a fact-based analysis. In ordinary commercial and TCC disputes, pre-action disclosure should not be lightly ordered. Disclosure is labour-intensive, but early exchange of information may promote settlement or narrow issues. The circumstances must be outside the usual run before an order is justified.
4. The contractual expert determination procedure was central. The expert had power under Schedule 10 to require written and oral representations and documentation. The documents sought could therefore be obtained within that process. The court had to be astute to prevent pre-action disclosure from frustrating, impeding or interfering with contractually agreed ADR.
5. The exclusive jurisdiction clause did not prevent the parties from carving out disputes allocated to expert determination. Applying the explanation in Barclays Bank v Nylon Capital LLP [2011] EWCA Civ 826, the dispute appeared, at least prima facie, to fall within the agreed expert procedure.
6. The documents had not been sought during the pre-action protocol process, the parties had already participated in that process, and Taylor Wimpey was not outside the relevant factual and contractual framework. An order would risk undermining the expert determination, its timetable and the expert’s function. The documents were not desirable within CPR Part 31.16.