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Commercial litigation - Technology and Construction Court determines the test that needs to be satisfied on pre-action discovery applications.
16 September 2011
The Technology and Construction Court has provided guidance, which has been long awaited, on the degree to which it is necessary to show that proceedings are contemplated or likely when making an application for pre-action discovery.
This is an issue that we are regularly are asked to advise upon. The Court rules permit, in respect of any potential 'claim', that a party may apply to the Court, ahead of the main proceedings, for the opponent to provide discovery to the extent that they would be obliged to in the main action. A Court may make such an order if it is shown that both sides would be parties to the claim, that the documents would be disclosable in the main proceedings and early disclosure would help dispose fairly of the dispute and assist in its early resolution together with saving costs.
However there is the continuing risk that a person making a spurious allegation will use the pre-action disclosure process as a 'fishing' exercise and that in fact, the 'claim' threatened by them, is unlikely and even if it were issued might be nothing more than a 'punt' - because when analysed allegations have no real prospects of success.
The Court found that on an application for pre-action disclosure, it is for the applicant to show that there is a real possibility, if not a certainty or likelihood, of proceedings between the parties. An application must not simply be used as a tactical weapon.
For more information see : PHD Modular Access Services Ltd v Seele GmbH [2011] EWHC 2210 (TCC)
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Andrew Petchey, Partner, Litigation
