BALFOUR BEATTY REGIONAL CONSTRUCTION LIMITED (FORMERLY MANSELL CONSTRUCTION SERVICES LIMITED) v BROADWAY MALYAN LIMITED

The court has power under CPR 3.1(2)(m) to order early specific disclosure, but the discretion is exceptional. The applicant must show a good reason, assessed by proportionality and the justice of the particular case, including the importance of the documents, their specific nature, their effect on the issues and pleadings, costs, timetable and court resources.

In proceedings governed by Practice Direction 51U, disclosure remains issue-focused. Paragraph 6A does not create a freestanding power to order early specific disclosure before the issues have been identified. A wide request made before the pre-action process and without adequate particulars will ordinarily be premature.

The claimant sought early disclosure from its former architect concerning a long-completed construction project. The underlying dispute arose from alleged defects in cladding, ventilation, windows and roofing. The claimant had issued a claim form, principally because of limitation concerns, but the claim had not been served and the Pre-Action Protocol process had not been completed.

The application sought documents relating to design and inspection. The claimant relied on alleged contractual, proprietary and procedural rights. The central issues were whether the court had power to order early specific disclosure under Practice Direction 51U or the Civil Procedure Rules 1998, and whether the discretion should be exercised before the issues and allegations had been sufficiently defined.

1. Disposition. The application for delivery up and early specific disclosure was refused.
2. The alleged contractual or proprietary entitlement was not an appropriate basis for summary relief. It was, in substance, a claim for a final remedy made without pleadings, a defence, or identification of the issues requiring determination. The contractual provisions raised unresolved questions of construction and fact, including whether documents had already been supplied, whether the documents fell within the contractual definition, and whether specific performance or mandatory relief was justified.
3. Part 31.12 did not apply because Practice Direction 51U governed the proceedings. Paragraph 1.9 disapplied Part 31 except for the provisions retained by the Practice Direction, including Part 31.16 pre-action disclosure.
4. Paragraph 6A.2 concerned disclosure issues arising within the structure of the Practice Direction. It did not introduce a freestanding power to order early specific disclosure. Paragraph 6A.3 and disclosure guidance under paragraph 11 were not intended to provide a route to such an order before the disclosure process had been structured. Paragraph 18.1 contemplated additional specific disclosure after an order for Extended Disclosure.
5. The court nevertheless had a general case-management power under CPR 3.1(2)(m). Its exercise required a good reason, assessed by proportionality and the justice of the individual case. Relevant considerations included the importance of the issue, the utility of early disclosure, the impact on the statement of case, the specificity of the request, costs, the timetable, court time and other court users. Early disclosure should be unusual or out of the ordinary.
6. The circumstances did not justify relief. The requests were wide, the allegations remained general, the pre-action process had not begun, and both parties faced comparable difficulties in locating and accessing old documents. The circumstances lacked the unfairness and information imbalance which had justified relief in Bullring. The claimant could provide further particulars through expert analysis without first obtaining the defendant’s entire design and inspection files.