Pre-action disclosure

INTRODUCTION

In England and Wales, an application can be made for pre-action disclosure under CPR r. 31.16 and s.33 of the Senior Courts Act 1981.

This article will consider pre-action disclosure ('PAD') in light of:

(1) CPR  r.31.16, entitled 'Disclosure before proceedings start' (for 'Business and Property Courts' r.31.16 as it appears in Practice Direction 57AD)

(2) Senior Courts Act 1981, s.33, entitled 'Powers of High Court exercisable before commencement of action', particularly, s.33(2);

(3) Black v Sumitomo [2002] WLR 1562 ('Black'), Court of Appeal (Ward LJ; May LJ; Rix LJ) on 3.12.01;

(4) Assetco Plc v Grant Thornton UK LLP [2013] EWHC 1215 (Comm) ('Assetco'), High Court (Blair J) on 25.1.13;

(5) Rana v Thapa [2015] 10 WLUK 818 ('Rana'), High Court (Master Matthews) on 30.10.15;

(6) The ECU Group plc v HSBC Bank plc [2017] EWHC 3011 (Comm); [2018] Lloyd's Rep. F.C. 44 ('ECU'), High Court (HHJ Waksman QC (sitting as a Judge of the High Court)) on 24.11.17;

(7) Dale v BDO LLP (also known as Re NMCN Plc (In Liquidation), Re, NMCN Sustainable Solutions Ltd (In Liquidation)) [2025] EWHC 446 (Ch) ('Dale'), High Court (ICC Judge Burton) on 27.2.25;

(8) Zhang v Mishcon de Reya LLP [2025] 4 WLUK 168 ('Zhang'), High Court (Mr Stephen Hofmeyr KC (sitting as a Deputy High Court Judge)) on 9.4.25[1];

(9) PMD Business Finance Holdings Ltd v Schofield [2026] EWHC 10 (KB) ('PMD'), High Court (HHJ Karen Walden-Smith sitting as a Judge of the High Court) on 5.1.26;

To assist:

(1) Assetco contains a helpful summary of the general princples (quoted below);

(2) Black is the leading authority - wherein, Rix LJ explained the correct approach to a pre-action disclosure application;

(3) Zhang is a recent 'go to' authority, drawing together some of the principles/propositions;

Business and Property Court

Where the pre-action disclosure application will be in a Business and Property Court, r.31.16 as it appears in Practice Direction 57AD, will apply (though it is worded the same)[2].

Reported authorities - focus on general principles rather than application to the facts

This article will focus on the general principles in this area of law. This article will not engage, in respect to the reported cases, in a detail analysis of how the facts fitted into the applicable legal tests. In Zhang, such analysis, for the purpose of making comparisons, was discouraged. At paragraph 40, the Judge in Zhang said:

''From time to time courts have attempted to compare the facts of reported pre-action disclosure cases with the facts of the cases before them to aid them in their analysis. Attention may be drawn to factual similarities and courts may be invited to reach similar conclusions. This exercise of comparison is usually an unhelpful exercise since each case presents its own unique facts. The circumstances which are relevant to the exercise of the discretion in one case and the weight to be given to each will inevitably vary from case to case. Reported pre-action disclosure cases are useful for the general principles they enunciate but an exercise of comparing facts is seldom profitable.'

Section 33(2) of the Senior Courts Act 1981

Senior Courts Act 1981, s.33 is, as stated, entitled 'Powers of High Court exercisable before commencement of action'[3] and s.33(2) reads:

'On the application, in accordance with rules of court, of a person who appears to the High Court to be likely to be a party to subsequent proceedings in that court the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim-

(a) to disclose whether those documents are in his possession, custody or power; and

(b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order—

(i) to the applicant's legal advisers; or

(ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or

(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.'

CPR R.31.16

CPR r.31.16 is, as stated, entitled 'Disclosure before proceedings start' and reads:

'(1) This rule applies where 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 respondent 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 had 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; and

(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; or

(iii) save costs.

(4) An order under this rule must-

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require him, when making disclosure, to specify any of those documents—

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may-

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection.'

Structure

Pre-action applications under r.31.16 are to be considered in 2 main stages:

(1) threshold conditions stage (sometimes called the 'jurisdictional requirement', or 'gateways', stage); and 

(2) discretionary stage.

In Rana, Master Matthews said, at paragraph 8:

'It is clear from the authorities that the court, in considering an application under r.31.16, should first of all consider whether the threshold conditions in sub-rule (3) are satisfied, and then should consider in the round, as a matter of discretion, whether it is appropriate to make the order.'

In Black, Rix LJ said:

(1) '...it is necessary not to confuse the jurisdictional and the discretionary aspects of the paragraph as a whole.' (paragraph 81) - this is particularly so as between r 31.16(3)(d) and the discretionary stage; and 

(2) '...all the jurisdictional thresholds which have to be passed (“only where”) in order to vest a court with discretion to make an order for pre-trial disclosure.' (paragraph 69)

Accordingly,

Stage 1 - The threshold conditions

The threshold conditions (sometimes called 'jurisdictional requirements') are:

'The court may make an order under this rule only where-

(a) the respondent 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 had 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; and

(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; or

(iii) save costs.' [bold added]

The threshold conditions are cumulative. In other words, each of the 4 threshold conditions must be satisfied, for the Court to have the power, under r.31.16, to make a pre-action disclosure order. This is clear from the word 'and' at the end of r.31.16(3)(cc) (as highlighted in bold). 

Stage 2 - discretionary stage

This arises from the use to the word 'may' in the first part of r.31.16(3), wherein it states 'The court may make an order under this rule...' [bold added]. The question for the Court is whether to exercise this discretion, which entails the Court asking itself whether it appropriate (or not), in the circumstances, for a pre-action disclosure order to be made (Rana, paragraph 23).

Relative Tests 

In terms of the balance of difficulty, as between Stage 1 and Stage 2 (i.e. each's 'height of the hurdle), Rix LJ in Black said, at paragraph 73:

'The jurisdictional threshold is not, I think, intended to be a high one. The real question is likely to be one of discretion, and answering the jurisdictional question in the affirmative is unlikely in itself to give the judge much of a steer as to the correct exercise of his power.'

Explainations 

In PMD, the Judge explained, at paragraph 3:

'CPR 31.16 sets out the provisions for the granting of an order for disclosure before the commencement of proceedings. CPR 31.16 (3) provides that the court may make an order under this rule where:

(a) the respondent 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 had 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; and

(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; or

(iii) save costs.'

Summary 

In Assetco, Blair J said, at paragraph 17:

'The law applicable to the application is not materially in dispute. CPR rule 31.16 provides that the court may make an order for pre-action disclosure only if certain conditions are satisfied:

(1) The respondent and applicant must both be likely to be parties to subsequent proceedings. (It is not however necessary to show in addition that the initiation of such proceedings is itself likely: Black v Sumitomo Corp [2002] 1 WLR 1562 at [71–72], Rix LJ, which is the leading case on the rule.)

(2) The documents sought must fall within the scope of the standard disclosure which the respondent would have to give in the anticipated proceedings. It follows that at the time of the application, the issues must be sufficiently clear to enable this requirement to be properly addressed (see XL London Market Ltd v Zenith Syndicate Management Ltd [2004] EWHC 1182 (Comm), at [22], Langley J).

(3) Disclosure before proceedings have started must be desirable (i) to dispose fairly of the anticipated proceedings, (ii) to assist the dispute to be resolved without proceedings, or (iii) to save costs (CPR rule 31.6(3)(d)).

(4) In considering whether to make an order, among the important considerations are the nature of the loss complained of, the clarity and identification of the issues raised by the complaint, the nature of the documents requested, the relevance of any protocol or pre-action inquiries, and the opportunity which the complainant has to make his case without pre-action disclosure (Black v Sumitomo Corp at [88]).

(5) The anticipated claim must have a real prospect of success ( Rose v Lynx Express [2004] BCLC 455).

(6) Finally, it is important to keep in mind that, certainly in the commercial context, a pre-action disclosure order, even if not exceptional, is unusual ( First Gulf Bank v Wachovia Bank [2005] EWHC 287 at [24], Christopher Clarke J).'

Propositions (2), (3) and (4) were quoted in PMD (paragraph 28). 2 points were made in PMD:

(1) 'The court must consider whether, in the round, the pre-action disclosure meets the requirements of CPR 31.16 and whether it is in furtherance of the overriding objective (see Hands v Morrison Construction Services Ltd [2006] EWHC 2018).' (paragraph 29)

(2) 'It is not for the court, in the context of this application, to embark upon a determination of substantive issues in the case (see Rose v Lynx Express Ltd [2004] EWCA 447)' (paragraph 30)

ECU

In ECU, HHJ Waksman QC said, under the heading 'The Law' (after quoting r.31.16), at paragrpah 17:

'The leading case is Black v Sumitomo [2002] 1 WLR 1562. The following propositions may be derived from the judgment of Rix LJ:

(1) The requirements in [CPR 31.16] (3)(a) and (b) are simply about the likely parties to any claim, not its underlying merits and 'likely' in this context means 'may well'; see paragraphs 71 and 72;

(2) Requirement (c) will raise the question of the clarity of the issues which would arise once the litigation has started, without which such clarity it will be difficult to say if the documents now sought would fall within standard disclosure; see paragraph 76;

(3) Requirement (d) with its three possible variants constitutes both a jurisdictional threshold and also a set of factors which are required to be considered in more detail when the question of discretion is dealt with; see paragraphs 81 and 82;

(4) The jurisdictional threshold is not intended to be a high one and the real question is likely to be the exercise of discretion which will not be much assisted by the simple fact that the jurisdictional threshold is met; see paragraph 73; if it were otherwise, that would tend to suggest that orders would be made much more frequently under this provision than they are; see paragraph 85;

(5) The discretion itself is not confined and will depend on all the facts of the case; important considerations will include the nature of the injury or loss complained; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or any pre-action enquiries and the opportunity which the complainant has to make his case without PAD; see paragraph 88;

(6) In addition, if there is considerable doubt as to whether the usual disclosure stage would ever be reached, the court can take this into account as affecting discretion; see paragraph 77. This must be a reference to particular or legal obstacles which the putative claim may face;

(7) At paragraph 92 Rix LJ stated 'unless there is some real evidence of dishonesty or abuse which only early disclosure can properly reveal and which may, in the absence of such disclosure, escape the probing eye of the litigation process and thus possibly all detection, I think that the court should be slow to allow a merely prospective litigant to conduct a review of the documents of another party, replacing focused allegation by a roving inquisition'. This observation was made in the context of Rix LJ having found that the complaint in that case was factually and legally 'speculative in the extreme' see paragraph 91. Context is important because it is otherwise hard to see why it must be shown that in the absence of early disclosure the evidence would (later) escape the eye of the legal process;

(8) 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 or the request argued to be mere fishing. The court might be entitled to take the view that transparency was what the interest of justice and proportionality most required. But the more diffuse the allegations and the wider the disclosure sought, more sceptical the court is entitled to be about the merit of the exercise; see paragraph 95.'

A full extract from Black is contained in a footnote[4]. An additional proposition given in Black is that: 

'paragraph (3)(d) may involve a two-stage process. I think that is correct. In my judgment, for jurisdictional purposes the court is only permitted to consider the granting of pre-action disclosure where there is a real prospect in principle of such an order being fair to the parties if litigation is commenced, or of assisting the parties to avoid litigation, or of saving costs in any event. If there is such a real prospect, then the court should go on to consider the question of discretion, which has to be considered on all the facts and not merely in principle but in detail.' (paragraph 81)

Zhang 

In Zhang, under the heading 'The Law' and after setting out r.31.16 and s.33(2), the Judge said:

(1) at paragraph 9, under the heading 'Assumptions and Findings of Fact':

'On an application for pre-action disclosure, the court may have to make, and generally of necessity will have to make, assumptions about the factual circumstances, assumptions which may ultimately prove incomplete or incorrect. For this reason, any findings of fact or assumptions about the facts cannot be definitive and will not be binding at any trial of the substantive claim. Further, the court should be hesitant about embarking upon any determination of substantive issues in the case. In order to found an application under CPR 31.16(3), it will normally be sufficient for the prospective claim to be properly arguable and to have a real prospect of success, and it will normally be appropriate to approach the conditions in CPR 31.16(3) on that basis: Rose v Lynx Express Ltd [2004] EWCA (Civ) 447, at [4].'

(2) at paragraphs 28 to 32:

'Every application for pre-action disclosure should be crafted with great care so that it is properly limited to what is strictly necessary: Snowstar Shipping Company Ltd. v Graig Shipping Plc [2003] EWHC 1367 Comm, at [35].

CPR 31.16(3)(a) to (d) set out the jurisdictional thresholds that must be satisfied before a pre-action disclosure order may be made. The application has to be made by a person likely to be a party to subsequent proceedings against a person likely to be a party to the proceedings. The respondent's duty by way of standard disclosure will extend to the documents sought if proceedings had started, and disclosure before proceedings have started must be desirable for at least one of three reasons. The court is only permitted to consider the granting of pre-action disclosure where there is a real prospect in principle of such an order (i) being fair to the parties if litigation is commenced, (ii) of assisting the parties to avoid litigation, or (iii) of saving costs in any event: Black v Sumitomo [2002] 1 WLR 1562, [81].

Only if the jurisdictional thresholds are met does the court have a discretion to determine whether to make an order. It is therefore essential in each case that the court carries out both stages of the analysis.

There is no express or implied jurisdictional threshold regarding the merits of the claim: Smith v Secretary of State for Energy [2014] 1 WLR 2283, para.23.

The leading case on pre-action disclosure is Black v Sumitomo [2002] WLR 1562, in which the correct approach to a pre-action disclosure application is explained in some detail by Rix LJ.

(3) at paragraph 33, 'A list of propositions may be derived from the judgment of Rix LJ, and they were helpfully gathered together by HHJ Waksman in The ECU Group plc v HSBC Bank plc [2017] EWHC 3011 (Comm), [17]:'. The Judge in Zhang then quoted the 8 propositions identified in ECU from Rix LJ's judgment in Black. The Judge in Zhang then continued, at paragraphs 34 to 39:

'As already noted, the court's discretion is not confined and will depend on all of the facts of the case. Factors that may be relevant to the exercise by the court of its discretion, additional to those identified, include any opportunity that the applicant may have of obtaining documents from an alternative source which would militate against pre-action disclosure: Black v Sumitomo at [97]; the applicant's conduct in the proceedings, including any "lack of frankness" concerning the basis for pursuing a claim, and the existence of proceedings in other jurisdictions raising similar issues which reflect the centre of gravity of the disputes: Pineway Ltd v London Mining Co Ltd [2020] EWHC 1143 (Comm), [54] to [55], and where there is no prospect of the applicant being able to establish a viable claim: Smith v Secretary of State for Energy, to which I have already referred, at [20] to [26]. It has also been said that the more speculative the claim, the less inclined the court is to grant the application, and its weakness is a factor which may be taken into account when considering whether a pre-action disclosure order should be made: Snowstar Shipping Company Ltd. v Graig Shipping [2003] EWHC 1367 (Comm), [33].

In almost every dispute a case could be made out that pre-action disclosure would be useful in achieving a settlement or otherwise saving costs, but that is not sufficient. There must be something unusual, something which takes the case outside the usual run, before pre-action disclosure will be ordered: Hutchinson 3G UK Ltd v O2 (UK) Ltd [2008] EWHC 50 (Comm), at [55], and Taylor Wimpey UK Ltd v Harron Homes Ltd [2020] EWHC 1190 (TCC), at [39]. In most cases pre-action disclosure will not be appropriate.

As regards applications in the Commercial Court, relatively recent guidance has been provided by Jacobs J in Carillion plc (in liquidation) v KPMG LLP & Anor [2020] EWHC 1416 (Comm), at [15]:

"Applications for pre-action disclosure in the Commercial Court are relatively rare, and the authorities to which I was referred contain no recent examples of successful applications. The 2018 edition of the White Book (paragraph C1A-010) said that pre-action disclosure orders are 'far from a foregone conclusion especially in the Chancery and Commercial courts.' In Hutchinson 3G UK Ltd. v O2 (UK) Ltd. [2008] EWHC 55 (Comm), Steel J. said (at [55]) that in order to obtain pre-action disclosure, the circumstances must be outside the 'usual run'; and that the absence of any convincing grounds for distinguishing the case from the normal run would be telling grounds for not exercising the court's discretion in favour of pre-action disclosure. In Assetco plc v Grant Thornton UK LLP [2013] EWHC 1215, Blair J. said (at [17]) that it was important to bear in mind that, certainly in the commercial context, a pre-action disclosure order is, if not exceptional, unusual. That case shows that pre-action disclosure of audit working papers is not viewed as the norm for audit negligence in the Commercial Court, notwithstanding that such documents will in due course likely be core documents for disclosure once the proceedings have started and pleadings have been exchanged."

The learned judge then quoted from the then current edition of the Commercial Court Guide, but I will make reference to the latest edition which reads as follows:

"B.3.2 Subject to complying with the Practice Direction and any applicable approved protocol, the parties to proceedings in the Commercial Court are not required, or generally expected, to engage in elaborate or expensive pre-action procedures, and restraint is encouraged.

B.3.3 Thus, the letter of claim should be concise and it is usually sufficient to explain the proposed claim(s), identifying key dates, so as to enable the potential defendant to understand and to investigate the allegations. Only essential documents need be supplied, and the period specified for a response should not be longer than one month without good reason."

In exercising his discretion in that case Jacobs J also said this at [91] and [92]:

"91. Secondly, against that background, I agree with Mr. Gaisman's submission that, in seeking further disclosure in order to seek to obtain a view on negligence which is 'concluded' and 'fully informed', Carillion is seeking a level of assurance and certainty which is inappropriate and does not justify the application which is made. It would be possible to say, in every professional negligence case in the Commercial Court, that pre-action disclosure would assist the claimant's expert in coming to a fully informed or concluded view on the issue of negligence. However, pre-action disclosure is not the norm, even in audit cases, as shown by Assetco and the absence of any recent authority where such disclosure has been ordered. The nature of civil litigation is that it is uncertain, and the process of providing information in order to enable experts and others to give concluded or 'fully informed' views is necessarily a lengthy one. The provision of disclosure is certainly a key part of that process, but the norm is for that to be provided once the litigation has started, and the Commercial Court has taken steps (reflected in the Disclosure Pilot contained in CPR PD 51U) to control that disclosure. The process of enabling concluded or fully informed views to be reached by experts does not, however, stop with disclosure. Experts need to consider what the fact witnesses say in their statements. Hence, expert reports are invariably exchanged or served only some time after factual witness statements, so that the reports can be informed by relevant witness evidence. The experts themselves will invariably only give their evidence, and hence their final views, after the factual witnesses have given evidence at trial. Accordingly, even if the disclosure now sought were to be provided, it would only provide an additional step on the road to an expert reaching a concluded or fully informed view. However, as the 38-page letter and Mr. Bunting's statement show, Carillion and its expert have been able on the materials available to take significant steps down that road already, and have been able to reach a view which is clearly strongly held. Whilst this is said to be based on "inference", there is nothing inherently unsatisfactory about that: inference is, generally speaking, a conclusion which a person can sensibly reach on the basis of existing information.

92. An expert engaged for the purposes of litigation would, of course, always like as much information as possible as early as possible. However, I do not think that the desire of an audit expert to have more information so as to convert his 'prima facie' views into more certain 'concluded' or 'fully informed' views, is a matter which generally speaking should lead to an order under CPR 31.16. In the present case, where it is clear that the expert has already formed a prima facie view which Carillion has been able to articulate in detail, the case for doing so is far from compelling. I do not consider that 'out of the norm' expensive pre-trial procedures are appropriate in order to provide a level of perfectionism or comfort for an expert's views, in circumstances where the expert has material on which he has been able to express a view which is sufficient to enable Carillion to start proceedings and plead its case.

There is no general rule that pre-action disclosure cannot be granted when an applicant can already plead its claim. The power to grant pre-action disclosure was intended to assist not only those who needed disclosure as a vital step in deciding whether to litigate at all, or as a vital ingredient in the pleading of their case, but also those who could plead a cause of action to improve their pleadings: Black v Sumitomo, at [68]. However, it is not enough that disclosure would enable a case to be pleaded with greater specificity, since something more than an ability to focus pleadings is required for there to be pre-action disclosure: Graffica Ltd v University of Birmingham [2018] EWHC 2683 (IPEC), at [9]. Further, if it were "perfectly possible" for the applicant to commence proceedings without pre-action disclosure, disclosure would not be needed to "dispose fairly of the anticipated proceedings", within the meaning of CPR 31.16(3)(d): Attheraces Ltd & Anor v Ladbrokes Betting and Gaming Ltd & Ors [2017] EWHC 431 (Ch), at [42].'

(5) at paragraph 40 - giving a warning against the unhelpful exercise of comparing the facts of one authority, with the facts in the application before the Court:

'From time to time courts have attempted to compare the facts of reported pre-action disclosure cases with the facts of the cases before them to aid them in their analysis. Attention may be drawn to factual similarities and courts may be invited to reach similar conclusions. This exercise of comparison is usually an unhelpful exercise since each case presents its own unique facts. The circumstances which are relevant to the exercise of the discretion in one case and the weight to be given to each will inevitably vary from case to case. Reported pre-action disclosure cases are useful for the general principles they enunciate but an exercise of comparing facts is seldom profitable.'

In light of this warning, it is sufficient to say that, in Zhang, the PAD application failed[5].

Dale

While not the focus of the case (which was an application under Insolvency Act 1986 s.235 and s.236), ICC Judge Burton in Dale, at paragraph 46, said:

'The court's discretion to order pre-action disclosure is generally not exercised where the claimant already has sufficient material to decide whether or not to commence proceedings, even if their case cannot be perfectly pleaded at that stage. Ms Sabben-Clare referred the court to Carillion Plc (in liquidation) v KPMG [2020] EWHC 1416 (Comm) where the court declined to order pre-action disclosure and AssetcCo Plc v Grant Thornton UK LLP [2013] EWHC 1215 (Com) where an order was similarly refused, as neither a letter of claim nor particulars of claim had been prepared identifying the issues between the parties.'

SIMON HILL © 2026*

BARRISTER 

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Simon Hill practices in the following areas: insolvency, company and business law, with some tax and property law.

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