UK: High Court Refuses Pre-Action Disclosure For Existing Claim But Allows It For Additional And Separate Causes Of Action In Proposed Proceedings

Last Updated: 25 April 2016
Article by Jane Howard

The High Court has confirmed it has no jurisdiction to hear an application for pre-action disclosure once proceedings have been issued, although the claimant's application for pre-action disclosure was successful in relation to a proposed second action against the same defendants.


In Anglia Research Services Ltd and another v Finders Genealogists Ltd and another [2016] the claimants issued an application for pre-action disclosure under Civil Procedure Rule (CPR) 31.16. The application related to proposed claims in defamation and harassment against the defendants.

The claimants had discovered the identity of the defendants as a result of successful Norwich Pharmacal applications, which required 'innocent' third parties to identify those responsible for certain twitter and website postings. It was these postings that the claimants alleged constituted a campaign of defamation and harassment against them.

The claimants sought pre-action disclosure of all documents which contained or referred to the defamatory material (as defined), or provided a link to that material on a specified web page. The claimants issued their application for pre-action disclosure on 26 November 2015. For limitation reasons they were then required to issue defamation proceedings against the defendants on 27 November 2015.

The defendants' challenged the court's jurisdiction to make the order being sought - on the basis that a claim form had now been issued.


The judge confirmed the starting point was s.33(2) of the Senior Courts Act 1981 and CPR 31.16, Respectively these set out the "Powers of High Court exercisable before commencement of action" and the court rules relating to "Disclosure before proceedings start...". It was clear these sections were directed to disclosure being sought before proceedings had been issued.

The recent decision in Personal Management Solutions Ltd v Gee 7 Group Ltd [2015] (the PMS case) was helpful. An appeal against a refusal by a master to hear an application under CPR 31.16 was dismissed because proceedings had already been commenced and the court no longer had jurisdiction to consider the application.

In the PMS case the judge had set out his analysis of how CPR 31.16 should be applied in various situations that had been canvassed in argument before him:

  • If an application is made before proceedings are commenced but proceedings were commenced before the application was heard, the court would not have jurisdiction to determine it;
  • If a claimant undertook to discontinue the first action and begin a second action - that was not an abuse of process - the court would have jurisdiction to determine an application made in relation to the second action but not made in relation to the first;
  • If one set of proceedings has been brought and a second set are contemplated - that would not be an abuse of process - the court could hear an application in respect of the second 'contemplated' proceedings, notwithstanding that the first action was continuing.

Adopting the position of the court in PMS the judge held that the court had no jurisdiction to hear the pre-action disclosure application in respect of the causes of action complained of in the first action, proceedings having already been commenced.

The court then considered two questions in respect of the proposed second action:

  • Would it be an abuse of process to bring the second action while the first action was still ongoing?
  • Does the pre-action disclosure application relate to the proposed causes of action in the second claim - as opposed to the causes of action pleaded in the first claim?

The court held it would not be an abuse of process for the second action to be commenced. The claimants had more than one substantive cause of action against the defendants. The application, as made, related to a bundle of potential causes of action, including those covered in the issued first action and those contemplated in the proposed second action. The proper course of action was for the court to award early disclosure in respect of the additional and separate causes of action and to disregard those causes of action covered by the 'issued claim'.

Having established that it had jurisdiction to hear the application in relation to the 'proposed claim' the court considered the specific requirements of CPR 31.16 and was satisfied they had been met.

The parties were likely to be parties to subsequent proceedings and the documents were likely to assist the claimant in assessing its claim against the defendant. Furthermore, the documents being sought would be given in standard disclosure if proceedings were commenced and the defendant would only need to undertake a reasonable and proportionate search. As a result ordering the defendant to provide pre-action disclosure in respect of the 'proposed' action would not be unfair or oppressive. The claimant's application in this regard was successful.


This case, and the PMS case, provide clear and helpful guidance on when the court has jurisdiction to hear an application for pre-action disclosure. It also confirms that pre-action disclosure can be granted in respect of a proposed second claim, provided the making of a second claim would not be an abuse of process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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