Union Bancaire Privée, UBP SA v L Catterton Europe SAS

Pre-action disclosure in commercial litigation requires separate satisfaction of the jurisdictional conditions and the discretionary question. Both parties need only be likely to become parties to later proceedings; commencement itself need not be likely. The documents sought must fall within standard disclosure, assessed on the assumption that standard disclosure would apply. At the discretion stage, the request must be highly focused and strictly necessary. The court considers the nature of the loss, the clarity of the issues, the documents sought, pre-action engagement and the applicant’s ability to plead without disclosure. A claimant who can already plead a viable, non-strikable claim will ordinarily not obtain a wide and costly search merely to improve its pleading or settlement position. Failure to engage pre-action, information asymmetry and fraud allegations do not justify an extensive request.

UBP applied under Senior Courts Act 1981, s.33(2), and CPR 31.16 for pre-action disclosure from LCE. It proposed a fraudulent misrepresentation claim concerning investment information supplied during its acquisition of an indirect interest in the Jott clothing business. UBP alleged that LCE knew of serious operational deterioration before the investment and sought documents showing what LCE knew, when it knew it, and how that knowledge affected valuations and representations.

LCE disputed jurisdiction, pre-action compliance, the scope of standard disclosure and proportionality. The court had to determine whether the jurisdictional and desirability conditions were met and, if so, whether the discretion to order disclosure should be exercised.

Application dismissed. The court held that the jurisdictional conditions for pre-action disclosure were met, but refused relief in the exercise of its discretion.

1. Jurisdiction. Under CPR 31.16(3)(a) and (b), it was sufficient that UBP and LCE were likely to be parties to subsequent proceedings; it was unnecessary to show that proceedings were themselves likely to be commenced. The proposed fraudulent misrepresentation claim was sufficiently connected with the English jurisdiction clause in the Letter Agreement. The court did not determine arguments concerning governing law, forum, releases or a possible CPR 11 stay. It followed the approach in Total E&P Soudan SA v Edmonds [2007] EWCA Civ 50.
2. Pre-action conduct. LCE had failed to engage substantively with the proposed claim and requests for information in the spirit of the Practice Direction – Pre-Action Conduct and Protocols. That failure was relevant, but did not determine the application.
3. Standard disclosure. Where later proceedings would be subject to PD57AD, the court should still ask whether the documents would be available under CPR 31.6 standard disclosure. The relevant categories, including post-investment material bearing on pre-investment knowledge and the truthfulness of representations, fell within that scope. The court followed Willow Sports Ltd v SportsLocker24.com Ltd [2021] EWHC 2524 (Ch).
4. Desirability and discretion. There was a real prospect that disclosure would assist fair determination, settlement and costs. That threshold did not resolve the separate discretion. Applying Black v Sumitomo Corp [2002] 1 WLR 1562, the court considered the nature of the loss, the clarity of the issues, the documents, pre-action conduct and UBP’s ability to plead without disclosure.
5. The request was not sufficiently focused. UBP could already plead a viable, non-strikable fraud claim, while the proposed searches and statement-of-truth requirement would involve an extensive and costly exercise. Fraud allegations required specificity and conviction, but did not justify broad pre-action disclosure. The more proportionate course was disclosure in ordinary proceedings under PD57AD.

not stated in the judgment.