Thomas Benski & Anor v Pulse Films Limited & Ors

Pre-action disclosure is an exceptional case-management remedy. Under rule 31.16 of the Civil Procedure Rules 1998, the applicant must show that the parties are likely to litigate, that the documents fall within standard disclosure, and that disclosure is desirable for a specified purpose. Satisfaction of those conditions does not compel an order. The court retains a broad discretion and should require a focused request confined to what is strictly necessary. A fraud allegation does not create privileged access to an opponent’s documents. Vague allegations, amorphous document categories, substantial cost and burden, and the ability to plead the claim without disclosure may justify refusal.

The applicants, founders and former shareholders of Pulse Films Limited, alleged fraudulent misrepresentation and unlawful means conspiracy against the company and three individuals concerning an unpaid secured loan note and alleged assurances about the value and sale of the Vice Group. They sought internal documents before proceedings under rule 31.16 of the Civil Procedure Rules 1998 and section 33(2) of the Senior Courts Act 1981.

The respondents disputed the allegations and argued that the proposed claim and document categories were insufficiently particularised and disproportionate. The central issues were whether the jurisdictional conditions for pre-action disclosure were satisfied and, if so, whether the court should exercise its discretion to order disclosure.

The application for pre-action disclosure was dismissed.

1. The court accepted that the applicants and respondents were likely, in the sense that they might well become parties, to subsequent proceedings. It also accepted that disclosure of at least some documents was desirable for one or more statutory purposes. However, the applicants had not shown that all or much of the requested material would fall within standard disclosure because the proposed claim and its issues were insufficiently defined.
2. Satisfaction of the jurisdictional requirements did not compel an order. The court retained a broad discretion, having regard to all material circumstances. The approach in Black v Sumitomo Corp [2001] EWCA Civ 1819; [2002] 1 WLR 1562 was applied. Relevant considerations included the clarity of the complaint, the nature and scope of the documents, the opportunity to formulate the claim without disclosure, delay, burden, duplication and confidentiality.
3. The requested categories were broad and amorphous. They covered a year-long period and required judgment about documents that merely related to, mentioned or referred to specified matters. The estimated exercise involved an initial pool of about 264,000 documents, approximately 6,600 documents for substantive review and costs of at least £440,000 plus VAT. The requirement for a highly focused request confined to what was strictly necessary, identified in Carillion plc (in liq) v KPMG LLP [2020] EWHC 1416 (Comm), was not met.
4. The allegations lacked sufficient clarity as to the representors, the words used, the circumstances and timing of the representations, and the alleged combination and intention for the conspiracy. The applicants maintained that they could bring their claim on existing material and inferences. A fraud allegation did not give them privileged access to pre-action disclosure, and the court found no unusual feature or substantial prejudice justifying the proposed exercise. Confidentiality counted against relief, while the delay in applying was given little weight.
5. Even assuming that the court had jurisdiction to make the order, the discretion would have been exercised against disclosure. The application was dismissed under rule 31.16.