What is a Pre-Action Disclosure Application?

A potential Claimant or Applicant may make a Pre-Action Disclosure Application to the Court under CPR 31.16, prior to issuing Court proceedings in order to obtain specific documents from the opposing party. In some circumstances, this type of application may also be made by a Defendant to obtain disclosure from a Claimant.

The Court will usually make an Order for Pre-Action Disclosure when:

• The requested disclosure falls within the scope of CPR 13.6
• It is likely that the Applicant and Respondent will be party to proceedings; and
• The application for Pre-Action Disclosure is likely to save costs, assist in the resolution of the dispute without proceedings, and/or fairly dispose of the anticipated proceedings. 

Under CPR 13.6, a party should disclose any document which may support another party’s case, or adversely impact their or another party’s case.

The Applicant must provide evidence demonstrating that the above tests have been met; however, the Court will have full discretion in deciding whether or not to make an Order for Pre-Action Disclosure, and may still refuse to do so even if evidence has shown that the tests have been met.

CPR 46.1 Costs of Pre-Action Disclosure Applications

The general rule under CPR 46.1 is that the Respondent will be required to pay the costs of the application.  As Pre-Action Disclosure Orders are usually made when the Respondent fails to provide disclosure requested from them, an award of costs is usually made in favour of a successful Applicant and the Respondent is required to pay for the application, this usually amounts to £250 in Fast-Track/fixed costs type claims if an oral hearing is required.

In higher value, non-Portal/fixed costs cases, the successful Applicant will be entitled to recover costs on a standard basis if they are ordered in their favour. The costs recoverable will include court fees, hourly rates for time spent working on the application and reasonable disbursements as well as any applicable VAT.

In some circumstances, a costs order may be made against the Applicant for additional costs incurred by the Respondent, if they fail in their application for Pre-Action Disclosure.

This was shown in the case of Todor Smith Investments Limited v Joseph Puthencherbyil Medayil. In this case, the Applicant was ordered to pay the Respondent’s costs, which included costs for locating and delivering the required documents.

In his decision, Judge ICC Barber stated the following:

‘It is clear from the evidence filed…and from the lack of any pre-action protocol correspondence, that at the time that the application was issued, the Applicant did not trouble itself to identify or expressly to rely upon any particular claim; it simply wanted delivery up of the documents. This was a mis-use of the pre-action disclosure regime. In my judgment the Respondent acted entirely reasonably in opposing the application’.

The above case highlights the importance of ensuring an application has strong legal evidence, and legal principles have been properly applied before proceeding to make an application for Pre-Action Disclosure to avoid having a costs order made against you as an Applicant.

Recovering Costs of a Pre-Action Disclosure Application

In some circumstances, the Court may grant a summary assessment of the costs to be awarded to either the Applicant or the Respondent to a Pre-Action Disclosure Application.  Applications are however, often compromised prior to a hearing taking place and therefore the opportunity for summary assessment to take place may not be available.

During a Summary Assessment, the Court will review the costs item by item and will usually grant costs which are necessary, reasonable and proportionate.

If the costs of the application cannot be agreed, or if they are significant in amount, the Court may make an order to proceed to detailed assessment so that the successful applicant can recover their costs under CPR 46.1.

In these circumstances, the successful Applicant will be required to initiate the process of detailed assessment.

To initiate detailed assessment proceedings, the Receiving Party (the party to whom the costs order was made in favour of) will be required to draft a bill of costs and serve it upon the Paying Party alongside a Notice of Commencement. The bill of costs should detail the amount of costs which the receiving party seeks to recover from the paying party on an item-by-item basis to allow scrutiny.

If the Paying Party do not agree with any of the costs listed within the bill of costs, they should prepare and send their Points of Dispute within 21 days to negotiate the level of cots.

The Receiving Party may further negotiate their position using Points of Reply and parties should attempt to reach an agreement before proceeding to a Detailed Assessment Hearing to avoid costs of detailed assessment escalating.

Litigation is always risky, and proceeding to a detailed assessment hearing can lead to a lesser financial sum being awarded to a Receiving Party and, if the Paying Party has made a better offer than is achieved on assessment, may result in the Receiving Party having to pay the detailed assessment costs of the Paying Party.

Equally if the Paying Party is unwilling to make a reasonable offer, they will have to pay the detailed assessment costs and Court fees of the Receiving Party for having to proceed to the assessment hearing stage.

How can ARC Costs Assist?

If you are the successful Applicant to a Pre-Action Disclosure Application and have been granted a costs order for standard costs under CPR 46.1, we can assist by preparing your Bill of Costs and Points of Reply in response to any Points of Dispute.

Alternatively, if a costs order has been made against you under CPR 46.1, or for any other reason, we can assist by preparing your Points of Dispute to help contest the level of costs being made against you.

Our independent Costs Lawyers can also assist by representing you at a detailed assessment hearing if required. 

Our team of costs experts can be contacted by email at info@arccosts.co.uk, or by telephone on 01204 397302. For more information on legal costs, please find out more about our speciality areas of expertise and our services on our legal costs page.

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