Avic ot - Pinsent Masons

1 5732 This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. Pinsent Masons LLP is a limited liability partnership registered in England & Wales (registered number: OC333653) authorised and regulated by the Solicitors Regulation Authority and the appropriate regulatory body in the other jurisdictions in which it operates. The word partner , used in relation to the LLP, refers to a member of the LLP or an employee or consultant of the LLP or any affiliated firm of equivalent standing. A list of the members of the LLP, and of those non-members who are designated as partners, is displayed at the LLP s registered office: 30 Crown Place, London EC2A 4ES, United Kingdom.

2 We use Pinsent Masons to refer to Pinsent Masons LLP and affiliated entities that practise under the name Pinsent Masons or a name that incorporates those words. Reference to Pinsent Masons is to Pinsent Masons LLP and/or one or more of those affiliated entities as the context requires. Pinsent Masons LLP a full list of our locations around the globe please visit our website: NoteOctober 2013 Responding to Requests for Pre-Action DisclosureCase law has made PAD much harder for claimants to obtain than the wording in CPR would suggest. It is usually possible to find legal grounds to resist giving PAD. Courts are sympathetic to undue burdens being placed on prospective defendants who are not yet a party to Rule in the Civil Procedure RulesThe tests in CPR : are the claimant and the defendant likely to be parties to a claim?

3 Are the documents sought within the scope of standard disclosure? is PAD desirable to dispose fairly of the claim, to assist in resolving the claim without proceedings or to save costs?These tests seem to suggest that PAD will be available in most cases; in reality, however, the courts see PAD as something which should be the exception rather than the case lawThe key decision is a Court of Appeal case from 2001, Black v Sumitomo, which says: The CPR tests only go to whether the court has jurisdiction to order PAD. They do not answer the question of whether the court should make that order in any particular case. That is a matter of discretion which must be considered on the specific facts of each case. In exercising the discretion, the court should only have regard to the nature of the injury complained of, the clarity with which the issues have been identified, the relevance of any pre-action protocol and the opportunity which the claimant has had to make its case without pre-action nature of the claimA prospective defendant should not be put to the trouble of giving PAD for a claim which may never be brought.

4 The court is therefore less willing to give PAD where the claim is claimant will not make a speculative claim stronger by applying for wide-ranging PAD in the belief that something useful may clarity with which the issues are describedIf the claimant can express its claim perfectly well, then why is PAD necessary? The claimant should get on with bringing the claim, rather than making pre-action applications. Beware making a claim for PAD at the end of a long and detailed claim letter; the fact that the claimant can already articulate a detailed claim makes it very hard for the claimant to explain why it needs with any applicable pre-action protocolThe parties pre-action conduct should in the normal course of events be governed by the pre-action protocols rather than through applications to court.

5 If the proposed defendant has already given whatever information it is required to give under the applicable pre-action protocol, that will make it very hard for a claimant to get anything else through PAD. It is a mistake to push for more than you are entitled to under the protocols. The pre-action exchange of information under the protocols is only intended to be sufficient for the parties to understand the issues between them; the court should be concerned with substance as opposed to minor or technical shortcomings when it appraises the parties pre-action conduct, and the usual remedy for breaches of the protocol requirements is only in the court order PAD, the usual order is that the claimant should pay the costs of the defendant s work in recovering the documents.

6 It is in the defendant s interests to put evidence before the court which shows what the costs of providing the PAD will be, rather than to deal with this point in general terms. Because the court will always have an eye to proportionality, the court could refuse to order PAD when the cost will be very high, even if that cost will fall upon the KellSenior AssociateLitigation & Compliance, Litigation & Regulatory LondonT: +44 (0)20 7054 2578M: +44 (0)7900 883268E: are asking for pre-action disclosure (PAD) with increasing frequency it is becoming the norm in certain types of cases. This note discusses the circumstances in which a claimant is likely to succeed with such a request and, alternatively, when a defendant is likely to be successful in more information, please contact.