Practice

Documents - pre-action disclosure - wide-ranging order properly madeBermuda International Securities Ltd v KPMG (a firm): CA (Waller, Clarke and Rix LJJ): 27 February 2001The applicant, which managed investment trusts, alleged that a firm of accountants, as auditors of one of the funds, had acted negligently.

Requests for disclosure of documents held by the firm were not acceded to and the applicant sought an order against the firm for pre-action disclosure in accordance with CPR rule 31.16.

The judge granted the application, making a wide-ranging order for pre-action disclosure of audit files, correspondence and other documents.

The firm appealed.Robin Knowles QC and David Allison (instructed by Stephenson Harwood) for the firm.

Michael Brindle QC and Philippa Hamilton (instructed by CMS Cameron McKenna) for the applicant.Held, dismissing the appeal, that rule 31.16 made provision for pre-action disclosure in circumstances where, if proceedings had started, the firm's duty by way of standard disclosure would extend to the documents requested by the applicant and where such disclosure was desirable to dispose fairly of the anticipated proceedings, assist the dispute to be resolved without proceedings or to save costs; that such orders were appropriate in a vast range of cases, it being peculiarly for judges in their case management role to work out the circumstances where such an order would assist and whether it was desirable for an order to be made; and that the judge had properly directed himself as to the relevant issues and his exercise of discretion in making the order could not be impugned.