Diamond Bus Limited v Transport for West Midlands

Pre-action disclosure under CPR 31.16 requires a two-stage analysis. The applicant must first establish the jurisdictional conditions, including a real prospect that disclosure will assist resolution, save costs or enable fair disposal. The court must then exercise its discretion on all the circumstances.

An applicant need not show that proceedings are likely to be issued, or that disclosure is essential to plead any case at all. Disclosure may be desirable where it will close a specific evidential gap, test competing calculations and materially narrow the dispute. A contractual expert-determination procedure is relevant but not necessarily decisive, particularly where its machinery contains no adequate provisions for disclosure or evidence. Confidentiality concerns may be addressed through a confidentiality club.

Diamond, a bus operator, applied under CPR 31.16 for pre-action disclosure from Transport for West Midlands in anticipation of a claim for additional reimbursement of concessionary bus fares for 2018–2019 and 2019–2020.

The application concerned anonymised passenger-level data relating to journeys made by passengers who used Diamond services. Diamond contended that TfWM’s area-wide calculation of average fare forgone was distorted by the predominance of another operator. TfWM disputed that case, relied on the standard methodology and contended that any dispute should proceed under the expert determination procedure in the reimbursement arrangements.

The central questions were whether the jurisdictional threshold under CPR 31.16(3) was met and, if so, whether the court should exercise its discretion to order disclosure.

1. Application granted in principle. The court held that the requirements of CPR 31.16(3)(a)–(c) were satisfied. The real issue was CPR 31.16(3)(d).
2. There was at least a real prospect that disclosure would assist the parties to resolve the dispute without proceedings and save costs. The data addressed an identified gap concerning cross-operator travel and would enable a more robust Diamond-specific look-up table to be prepared. It could vindicate either party’s methodology, narrow the dispute or assist in pleading a reliable claim.
3. The statutory and regulatory objective was that operators should be neither better nor worse off through providing concessionary travel. That objective could justify departing from the standard method where appropriate local data showed that the standard method produced a skewed result. Treating the larger dataset as necessarily more accurate was not sufficient where one operator represented 90% of the relevant sample and might have materially different passenger behaviour.
4. The request was not impermissible fishing. It identified a particular evidential lacuna, specified the data required to address it and was supported by evidence that TfWM could provide the data within a reasonable period. The request was sufficiently focused and strictly necessary for the stated purpose, although the court remained willing to consider narrower terms.
5. The dispute resolution procedure in Schedule 7 to the 2000 Act Arrangements was not merely permissive. Either party could require the appointment of an independent expert, including appointment by the President of the Law Society if necessary. Nevertheless, the procedure did not contain detailed rules for disclosure, evidence or submissions, so its existence did not decisively outweigh the case for disclosure.
6. Confidentiality concerns were legitimate but could be addressed by limiting access to experts, advisers and lawyers through appropriate confidentiality undertakings. Delay and the fact that Diamond had prepared draft particulars of claim did not defeat the application, since the disclosure could materially improve the reliability and focus of the proposed claim.
7. The court concluded that the case was outside the usual run and ordered pre-action disclosure in principle. Consequential matters, including the precise form of order, confidentiality undertakings, permission to appeal and costs, were adjourned.