At the conclusion of the claimant’s appeal in Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585, Lord Justice Longmore stated ‘applications for pre-action disclosure are not meant to be a mini trial of the action, and should be disposed of swiftly and economically. Elaborate arguments are to be discouraged’.

In two sentences his lordship properly summarised the 14-page judgment of his fellow lord of appeal, Lord Justice Underhill.

The appellant was a former employee of the National Coal Board, who alleged that his noise-induced hearing loss was work-related. He issued an application for pre-action disclosure of a number of documents contained within his letter of claim which was sent pursuant to the Pre-Action Protocol for Disease and Illness Claims 2003.

These included documentation relating to noise tests carried out on behalf of the employers, memoranda and other documentation resulting from the defendants’ consideration of the problems caused by noise and their decision to provide hearing protection, warning notices and instructions issued by the employers, and copies of all safety committee meeting minutes and safety officers reports.

The district judge allowed the application. The respondent appealed, and the county court judge allowed that appeal, dismissing the application.

Leave to appeal was granted by Lord Justice Lewison on the basis that ‘there is some confusion on the authorities: what is the correct threshold test for the claimant to satisfy before the court will consider making an order for pre-action disclosure’.

The starting point is Civil Procedure Rule 31.16. This sets out the four-stage test that must be satisfied for the court to make an order. It reads:

(1) ‘This rule applies when an application is made to the court under any act for disclosure before proceedings have started;

(2) The application must be supported by evidence;

(3) The court may make an order under this rule only where:

(a) The party is likely to be a party to subsequent proceedings;

(b) The applicant is also likely to be a party to those proceedings;

(c) If proceedings are started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure;

(d) Disclosure before proceedings have started is desirable in order to:

i.    Dispose fairly of the anticipated proceedings;

ii.    Assist the dispute to be resolved without proceedings;

iii.    Save costs.’

The four requirements – (a)-(d) – were considered in detail by Lord Justice Rix in Black v Sumitomo Corporation [2002] 1WLR 1562. His lordship found that they constituted the ‘jurisdiction threshold’. Only if this is satisfied should the court proceed to the second stage to consider whether to exercise its discretion to make an order.

Importantly, his lordship made it clear that in relation to (a) and (b) there was no statutory requirement that ‘a claim… is likely to be made’, and in fact the word ‘likely’ should be interpreted as ‘may well’. In other words, all that has to be proved is that the persons concerned are likely to be parties in proceedings if (my emphasis) those proceedings are issued.

Having considered the jurisdictional issues, the court then has to apply its discretion. If the case is ‘speculative in the extreme’ then doubtless the discretion will not be exercised in favour of the applicant.

Equally, he identified that a request for very wide-ranging disclosure would be less attractive, and provided guidance that ‘the more focused the complaint and the more limited the disclosure sought in that connection, the easier it is for the court to exercise its discretion in favour of pre-action disclosure, even where the complaint might seem somewhat speculative…’.

The court also considered at some length Mr Justice Flaux in Kneale v Barclays Bank Plc [2010] EWHC 1900 (Comm). His lordship introduced a qualification to the jurisdictional question, namely that the claimant had to demonstrate an ‘arguable case’ in order to satisfy the criteria. He continued to find that the applicant had to show some sort of prima facie case, which is more than a ‘merely speculative “punt”’.

In considering the instant appeal, the court accepted the applicant’s submission that there was no jurisdictional ‘arguability threshold’. CPR 31.16.3 (a-d) makes no reference to establishing a minimum level of arguability. Underhill LJ found that it was better that questions about the likelihood of the applicant being able, in due course, to establish a viable claim are considered as part of a flexible exercise of the court’s discretion. They do not fall to be considered within the jurisdictional threshold test.

In the circumstances, he held that Flaux J was wrong to proceed on that basis, and hence the county court judge was equally wrong to rely upon that approach. The district judge, however, was correct. He had found that the claimant had satisfied the jurisdictional threshold, and then exercised his discretion to allow the claimant’s application for disclosure without the need, as argued by the defendants, for a full expert opinion confirming that the claimant suffered a hearing loss which was noise induced.

The claimant did not have to provide a supportive audiogram or other medical opinion.

After a judgment which is logical and appropriate, his lordship then tarnished it a little when in paragraph 35 he stated, by reference to the disease and illness protocol, that ‘protocols do not have the status of rules and there is no obligation as such to comply with them; nor are they drafted with the precision of the rules themselves’.

This clashes with the view of Lord Justice Brooke in Carlson v Townsend, in which he stated that the personal injury pre-action protocol together with other protocols ‘are guides to good litigation and pre-litigation practice’. Additionally, he stated ‘in accordance with the sense of the civil justice reforms, the court will expect to see the spirit of reasonable pre-action behaviour applied in all cases, regardless of the existence of a specific protocol’.

The judgment later refers to ‘adverse costs consequences’ for non-compliance.

It is disappointing that, at a time when the parties to litigation are being firmly encouraged to be compliant in the processing of claim for damages, the requirement to adhere to the protocol which governs the pre-litigation stage in an action has been punctured. Such comments make the protocols, which many in practice perceive to be helpful, purposive but without a purpose.

Simon Allen, Slater & Gordon