Hussain v Medical Defence Union & Anor

An order for pre-action disclosure requires both the jurisdictional conditions in CPR 31.16 and a discretionary justification for departing from the ordinary timing of disclosure. The discretion is fact-sensitive. Relevant considerations include the nature of the loss, the clarity of the issues, the scope of the documents sought, pre-action conduct and the applicant’s ability to formulate a case without early disclosure. Focused requests may justify relief, but diffuse or speculative requests weigh against it. Where the applicant already has sufficient material to plead a claim and another lawful route to obtain information is available, pre-action disclosure may be refused. The general costs rule applies to an unsuccessful application, subject to proportionality on assessment.

The applicant, a general surgeon, sought pre-action disclosure from his mutual indemnifier and its agent. Assistance in defending a clinical negligence claim had been withdrawn after concerns that he had substantially under-declared relevant income and had paid an insufficient subscription. He alleged that the withdrawal decision might have been contractually improper and sought committee records, internal documents and material concerning the alleged under-declaration.

The respondents accepted at the hearing that the jurisdictional conditions in CPR 31.16(3)(a) to (c) were met, but opposed the exercise of the discretion. The central issues were whether early disclosure was desirable and whether the circumstances were sufficiently unusual to justify departing from disclosure at the normal stage.

1. Jurisdiction. The conditions in CPR 31.16(3)(a) to (c) were satisfied against both respondents. Both were likely to be parties to anticipated proceedings, the applicant was plainly likely to be a party, and the requested documents fell within documents or classes that would be subject to standard disclosure. CPR 31.16(3)(d) was also satisfied because there was a real prospect that disclosure would help narrow the issues, save costs, or cause either side to reconsider the utility of proceedings.
2. Discretion. The jurisdictional threshold did not determine the application. Pre-action disclosure remained an exceptional departure from the ordinary timing where parties had acted reasonably. The relevant considerations included the nature of the loss, the clarity of the complaint, the nature and scope of the documents, the relevance of pre-action inquiries and the applicant’s opportunity to formulate a case without disclosure. The applicant’s complaint was sufficiently identifiable and the documents were relatively confined. Those factors favoured disclosure.
3. Against disclosure, the respondents had provided ostensibly key documents and sufficient information to plead a case. The suggestion that the withdrawal decision was connected with a proposed change of indemnifier was speculative because the income investigation preceded that event. The applicant also had a potentially effective alternative route through a subject access request under the GDPR. Weighing the factors in the round, the circumstances were not sufficiently unusual to justify pre-action disclosure. The application was refused.
4. Costs. The respondents were entitled to their costs under CPR 46.1(2). Their conduct did not justify indemnity costs. The claimed costs were disproportionate under CPR 44.3(2)(a), particularly in light of the likely availability of the same documents through a subject access request and the excessive partner and fee-earner involvement. Costs were summarily assessed on the standard basis at £18,637.92 plus VAT, namely £22,365.50, payable within a reasonable period.