Corbyn v Evans

Pre-action disclosure is exceptional. The applicant must first establish the jurisdictional requirements in CPR 31.16 and must then persuade the court, as a matter of discretion, that disclosure is desirable. A prospective claimant who can plead an oral agreement or alleged bad faith from facts already known will not ordinarily obtain the other party’s internal documents merely to strengthen or refine the claim. Speculation about improper influence, media interest, reputational concerns, political significance, or possible effects on other proceedings does not by itself justify disclosure. The court may find the threshold met where disclosure has a real prospect of avoiding amendments and costs, yet still refuse relief after weighing the matter overall. Fishing expeditions and requests extending beyond documents necessary to formulate the anticipated claim are impermissible.

The applicant, the former Leader of the Labour Party, sought pre-action disclosure from the Party’s General Secretary under CPR 31.16. He anticipated proceedings concerning the suspension of the Labour Party Whip, alleging breach of an oral agreement, breach of the Labour Party rules, bad faith and improper political interference. Five broad classes of documents were sought, including documents concerning the suspensions, internal investigations, alleged agreement and later investigations.

The court considered whether the jurisdictional threshold was met and, if so, whether disclosure should be ordered in the exercise of discretion. After the hearing, additional subject-access-request material and submissions were considered, but they did not alter the analysis.

1. Application refused. The court held that the jurisdictional requirements in CPR 31.16 were met in relation to the proposed bad-faith case, but not in relation to the alleged oral agreement. In either event, pre-action disclosure was not desirable in the exercise of discretion.
2. The jurisdictional conditions in CPR 31.16 are distinct from the discretionary question, although the considerations may overlap. The threshold under rule 31.16(2)(d) is relatively low: there must be a real prospect that disclosure will dispose fairly of the anticipated proceedings, assist resolution without proceedings, or save costs.
3. Disclosure relating to the alleged oral agreement was refused. The applicant’s representatives could give evidence, and the alleged terms were sufficiently clear to plead. Documents created by the other contracting party would not realistically resolve the fundamental dispute, particularly where that party denied the agreement. The absence of notes by the applicant’s representatives did not create the relevant documentary asymmetry.
4. The threshold was met for documents potentially relevant to the reasons for the second suspension, because disclosure had a real prospect of leading to amendments to the pleadings and avoiding some costs. That conclusion did not determine the discretionary issue.
5. On discretion, the court rejected the request as substantially a fishing exercise. The applicant could plead breach of the oral agreement and alleged bad faith from the facts known to him. A fraud-level evidential basis was unnecessary. Speculation based on press reports, media attention, public interest, reputational impact, inequality of access to documents, and possible effects on other cases did not justify departure from the ordinary litigation process. The breadth and uncertain relevance of the requested documents also weighed against relief.
6. Additional subject-access-request material showed that there had been a conversation between the Chief Whip and the Labour Party Leader, but added no material information and did not establish misleading representations. It therefore did not alter the conclusions. The court refused pre-action disclosure, applying the overriding objective.