Costs of pre-action disclosure application

What is the position on costs on a pre-action disclosure application governed by the CPR?

This article will consider CPR r.46.1 and the cases of:

(1) Bermuda International Securities Ltd v KPMG [2001] EWCA Civ 269; [2001] 1 Lloyd’s Rep. P.N. 392, ('Bermuda'); Court of Appeal (Waller LJ; Clarke LJ; Rix LJ) on 27.2.01[1];

(2) SES Contracting Ltd v UK Coal Plc [2007] EWCA Civ 791 ('SES Contracting'), Court of Appeal (Waller LJ; Moses LJ; Moore-Bick LJ) on 26.7.07[1a];

(3) Moduleco v Carillion Construction Ltd [2009] EWHC 250 (TCC) ('Moduleco'), High Court (Akenhead J) on 11.2.09;

(4) Gorbachev v Guriev [2023] 1 WLR 2457 ('Gorbachev 327'), Court of Appeal (Males LJ; Popplewell LJ; Dingemans LJ) on 28.3.23;

(5) Dahlman v Oxley [2025] EWHC 2962 (Ch) ('Dahlman'), High Court (Deputy Master Scher) on 31.7.25;

There are two other authorities which look interesting, but there are only Case Digests available for them[1b].

A couple of preliminary points:

(1) the Senior Courts Act 1981 used to be called the Supreme Court Act 1981;

(2) the rule which is the subject of this article:

(a) is now contained in CPR r.46.1; but

(b) used to be contained in r.46.1's predecessor, CPR r.48.1 (worded the same).

The transition happened on 1.4.13.

(3) The pre-action disclosure application ('PAD Application') will have:

(a) a PAD Applicant(s); and

(b) a PAD Respondent(s).

(4) SES Contracting is the leading authority.

CPR r.46.1 - Pre-commencement disclosure and orders for disclosure against a person who is not a party

Part 46 of the CPR is entitled 'Costs - Special Cases'. It is split into 9 sections. Section I is entitled 'Costs Payable by or to Particular Persons' and it contains 7 provisions. It is the first provision, r.46.1, which is relevant to this article.

CPR r.46.1 is entitled 'Pre-commencement disclosure and orders for disclosure against a person who is not a party' and reads:

'(1) This paragraph applies where a person applies-

(a) for an order under-

(i) section 33 of the Senior Courts Act 1981; or

(ii) section 52 of the County Courts Act 1984,

(which give the court powers exercisable before commencement of proceedings); or

(b) for an order under-

(i) section 34 of the Senior Courts Act 1981; or

(ii) section 53 of the County Courts Act 1984,

(which give the court power to make an order against a non-party for disclosure of documents, inspection of property etc.).

(2) The general rule is that the court will award the person against whom the order is sought that person’s costs-

(a) of the application; and

(b) of complying with any order made on the application.

(3) The court may however make a different order, having regard to all the circumstances, including-

(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and

(b) whether the parties to the application have complied with any relevant pre-action protocol.'

The wording to the following provisions, for completeness, are contained in footnotes:

(1) section 33 of the Senior Courts Act 1981[2];

(2) section 52 of the County Courts Act 1984[3];

Section 34 of the Senior Courts Act 1981 and section 53 of the County Courts Act 1984 bestow powers on the Court to order that a non-party do provide disclosure of documents, inspection of property etc - powers/topics which are not the subject of this article.

Structure

R.46.1 can be seen as having 2 parts:

(1) the general rule;

(2) option to make a different order, and the circumstances (all and 2 in particular) which will be taken into account.

General rule

R.46.1(2) provides the general rule. To repeat, r.46.1(2) reads:

'The general rule is that the court will award the person against whom the order is sought that person’s costs-

(a) of the application; and

(b) of complying with any order made on the application.'

So, as will be apparent:

(1) the general rule is that the PAD Applicant will pay the PAD Respondent's costs of, both:

(a) the PAD Application (costs of the PAD Application); and

(b) PAD Respondent complying with the PAD order (costs of PAD order compliance).

Discretion to make a different order

R.46.1(3) stipulates that the Court may make an order different from the general rule. To repeat, r.46.1(3) reads:

'The court may however make a different order, having regard to all the circumstances, including-

(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and

(b) whether the parties to the application have complied with any relevant pre-action protocol.'

So, as will be apparent:

(1) the Court is not required to impose the general rule order, but may make a different order.

(2) the Court may make a different order, having regard to 'all the circumstances';

(3) while the Court will have regard to all the circumstances, 2 particular circumstances are expressly highlighted, namely:

(a) the extent to which it was reasonable for the PAD Respondent to oppose the PAD Application; and

(b) whether the parties to the PAD Application have complied with any relevant pre-action protocol.

In the White Book 2026, the commentary provides that the Court will 'normally' award costs as per the general rule[3a].

Bermuda

In Bermuda, Bermuda International Securities Ltd ('BISL') was the PAD Applicant; KPMG was the PAD Respondent.

At first instance, BISL was successful on its PAD Application. On the question of costs, the first instance judge:

'...refused to order BISL to pay either the costs of the application or the costs of providing the documents despite the presumption under CPR 48.1 that any costs of the application or the provision of pre-action disclosure should be paid by the party seeking the same.' (paragraph 1; on costs, it as no order as to costs (see SES Contracting, paragraph 24))

Under the heading 'Costs', and after setting out r.48.1 (now r.46.1), Waller LJ (with whom Clarke LJ and Rix LJ agreed):

(1) identified that there was a presumption in favour of the PAD Respondent being awarded:

(a) the PAD Respondent's costs of the application; and

(b) the PAD Respondent's costs of complying with any order made.

Waller LJ said, at paragraph 30: '...there is clearly a presumption in favour of KPMG in relation to both the costs of the application and the costs of complying with any order made. In the argument before him little distinction may have been made between the costs of the application and the costs of complying. The judge's attitude was that KPMG should not have dug their heels in to the extent that they did, and that thus a costs order should not be made in their favour.'

(2) considered that the costs of complying with any PAD order, 'will be' recovered by the PAD Respondent. Waller LJ said, at paragraph 32:

'Before us when it was put to [counsel for BISL] on what basis it was proper for KPMG to be deprived of the costs of complying with any order, he was quick to accept that he could think of none. In my view it is important that it is recognised that in relation to pre-action disclosure, the cost of the actual exercise will be paid by the applicant for that disclosure.'

(3) considered that, in respect to the PAD Application - '...if it has been unreasonably resisted, those are the very circumstances contemplated where the order for costs may be different.' (paragraph 32).

On the facts in Bermuda, the first instance judge:

(1) had been wrong not to order that BISL pay KPMG the costs of compliance with the PAD order (BSIL had, essentially, conceded there was no defence to this PAD Respondent appeal point);

(2) had been entitled to decide that BISL should not be ordered to pay KPMG's cost of the PAD Application. On this, Waller LJ said, at paragraph 33:

'In this case KPMG were really resisting the production of documents root and branch. Their reference in their letter to “particular” documents does not assist them since they clearly meant only “particular” documents. They were obviously concerned about the precedent that might be set, but in circumstances where the issue is in fact a narrow one and readily ascertainable, and where they themselves have already reviewed the documents and it was no burden to hand them over, it was certainly open to the judge to make the order for costs that he did. Once again it does not seem to me possible to impugn the exercise of his discretion in that regard.'

SES Contracting

In SES Contracting, UK Coal (2 companies) was responsible for the operation of the remaining deep coal mines in the UK. UK Coal invited tenders to undertake certain work on Kellingley Colliery. SES had tendered for the work, but the tender was awarded to another company (Centech). SES became suspicious that Centech may have had access to SES's tender, thereby enabling it, in essence, to tailor Centech's tender, to Centech's advantage. Further, some emails were obtained:

'...these e-mails not only tended to confirm the suspicions already harboured by SES about the manner in which Centech had obtained the contract for the work at Kellingley, but also provided grounds for thinking that, even while still employed by SES, Mr Weston had been colluding with UK Coal with a view to stealing its business. They also, therefore, provided grounds for thinking that SES might have a claim against UK Coal itself. However, the position was not entirely clear and so it was thought wise to obtain access, if possible, to documents in the possession of UK Coal which, it was thought, would clarify the position one way or the other.' (paragraph 11)

SES issued (amongst other things) an PAD application (paragraph 11).

UK Coal resisted the PAD Application, filing a number of witness statements: (a) taking issue with SES's assertions; and (b) dealing with the circumstances in which Centech was awarded the tender contract (paragraph 12).

'However, none of the witnesses exhibited to their statements any documents, despite the fact that there must in the nature of things have existed in the possession of UK Coal documents which both shed further light on and (if the statements were true) supported what the witnesses were saying; and that turned out to be their undoing when the judge came to deal with the costs of the application.' (paragraph 12)

'At the end of a hearing lasting the better part of three days the judge was satisfied that that SES had satisfied all the requirements of r.31.16(3). He therefore ordered UK Coal and Centech to disclose 15 categories of documents sought by SES, limiting the scope of each category to documents created between January 1, 2005 and September 30, 2006. In Mr Weston's case he limited the order to 8 of the 15 categories on the grounds that it was superfluous to make an order against him in relation to the other 7. There is no appeal against those parts of the judge's order.' (paragraph 13)

Costs at first instance

On costs, at first instance, the Judge:

(1) ordered UK Coal to '...pay the costs of the [PAD Application] in their entirety' (paragraph 14). In other words: (a) UK Coal (PAD Respondent) not only did not recover UK Coal's own costs of dealing with the PAD Application; but (b) UK Coal (PAD Respondent) also had to pay to SES (PAD Applicant), a sum to reimburse SES for SES's costs of the PAD Application (on a standard basis (paragraph 24)); and

(2) did not order UK Coal to pay the costs of complying with the order (paragraph 14)

The law

On appeal, Moore-Bick LJ (with whom Moses LJ and Waller LJ agreed) addressed the law in this area. He said, at paragraphs 17 and 18:

'CPR r.48.1 provides that, where a person makes an application for disclosure before proceedings, the general rule is that the court will award the person against whom the order is sought his costs of the application, but that the court may make a different order having regard to all the circumstances, including the extent to which it was reasonable for the person against whom the order was sought to oppose the application. Although a respondent to an application may incur some costs merely in considering what response to make to an application of this kind, in most cases he will only incur substantial costs if he opposes it. By laying down a general rule that the respondent will be awarded his costs, therefore, I think that the Rules implicitly recognise that it will not usually be unreasonable for him to require the applicant to satisfy the court that he ought to be granted the relief which he seeks. The reason for that (if it be necessary to find one) lies, I think, in a recognition that a private person who is not a party to existing litigation which brings with it an obligation of disclosure is entitled to maintain the privacy of his papers unless sufficient grounds can be shown for overriding it and that it is for the person seeking to invade that privacy to justify doing so. At all events, the rule is clear in its terms and provides the point of departure for a judge dealing with the costs of an application of this kind.

[Counsel for SES] recognised, of course, that CPR r. 48.1(2) provides the starting point, although he was inclined to suggest that applications of this kind are becoming almost routine and that the court should not be slow to treat opposition to them as unreasonable. I would not myself accede to that proposition. No doubt in some types of case a degree of disclosure before proceedings has become routine - for example, the disclosure of the patient's records in clinical negligence actions but the present case does not fall into any such category. The real question which arises in this case, therefore, is whether it was unreasonable for UK Coal to oppose the application at all, and if not, whether its conduct in relation to the application was capable of justifying the order the judge made.' [bold added]

To emphasise the points made above:

(1) 'a private person who is not a party to existing litigation which brings with it an obligation of disclosure is entitled to maintain the privacy of his papers unless sufficient grounds can be shown for overriding it and that it is for the person seeking to invade that privacy to justify doing so'; and

(2) the Rules recognise that 'it will not usually be unreasonable for him to require the applicant to satisfy the court that he ought to be granted the relief which he seeks'

(3) the analysis on the 'real question' - can involved 2 questions:

(a) whether it was unreasonable for [the PAD Respondent] to oppose the application at all; and if not,

(b) whether the PAD Respondent's conduct in relation to the PAD application, was capable of justifying a different order from the general rule order (this can be thought of as focusing on the manner of a PAD Respondent's opposition to a PAD Application - and whether that was unreasonable);

As will be seen, the nature of the contemplated claims, can influence whether opposition to a PAD Application, will be considered by the Court to be unreasonable.

On the facts in SES Contracting

On the facts in SES Contracting, in answer to the question: whether it was unreasonable for UK Coal, the PAD Respondent, to oppose the application at all, the answer was: it was not unreasonable for UK Coal, the PAD Respondent, to have opposed SES's (the PAD Applicant's) PAD Application (paragraph 19) at all. Factors:

(1) Whether opposition to a PAD Application was reasonable or unreasonable can depend on the nature, particularly, the routine nature of the claim (or otherwise) and what disclosure would normally therefore be expected from a PAD Respondent, based perhaps, on an established approach. Moore-Bick LJ in SES Contracting said, at paragraph 19:

'The claim that SES contemplates making against UK Coal in this case is not by any means of a routine nature. This is not, therefore, the kind of case in which there is an established approach to the investigation of a dispute that may in due course lead to litigation so that one can say with confidence what steps the potential defendant should take. Moreover, the allegations being levelled against UK Coal by SES are of participation in a dishonest conspiracy to steal its business.'

(2) whether the PAD Respondent has been presented with unspecific and unverified (because as yet unpleaded) allegations - and how easy it might be to say that the PAD Respondent had failed to co-operate, in response, in such circumstances. Moore-Bick LJ in SES Contracting said, at paragraph 19:

'In [58] of his judgment in Black v Sumitomo Corporation [2001] EWCA Civ 1819, [2002] 1 W.L.R. 1562, the leading authority on disclosure before proceedings, Rix L.J. doubted whether a prospective claimant could easily say that an allegedly fraudulent respondent had failed to co-operate by refusing disclosure in response to unspecific and unverified (because as yet unpleaded) allegations. I agree and by the same token I do not think that it could easily be said that it was unreasonable for the respondent to resist the application. In my view it cannot be said in this case that it was unreasonable of UK Coal to oppose the application, and indeed, as I read the judgment, that was not the view taken by the judge himself. What carried weight with him was not the fact that UK Coal had resisted the application but the manner in which it had done so.'

The first instance judge '...did think it unreasonable for [UK Coal] to dispute those allegations without providing supporting evidence in the form of the very documents to which the application related.' (paragraph 20) but, Moore-Bick LJ held that criticism of this, was 'well-founded' (paragraph 21). It was not unreasonable behaviour of UK Coal, to put in witness statements unsupported by any contemporaneous documents. Reliance by UK Coal on such (unsupported) witness statements:

(a) was not, per se, unreasonable behaviour justifying a departure from the general rule on costs (unless it is a wholly unreasonable course, which unnecessarily increases costs); though

(b) may have meant that the first instance judge was less likely to accept the contentions in those witness statements, but that was another matter (which did not go to whether to depart from the general rule on costs on a PAD Application).

Moore-Bick LJ in SES Contracting said, at paragraph 21:

'If it was reasonable for UK Coal to oppose the application at all, it was surely entitled to decide on what basis and with what evidence it wished to do so, provided only that it did not take a wholly unreasonable course which unnecessarily increased the costs. If the respondent to an application of this kind decides to contest the allegations against him on the basis of witness statements unsupported by any contemporaneous documents, he runs the risk that the court will place less weight on that evidence than it might otherwise have done, but in my view that does not of itself make his behaviour unreasonable. In the present case...the judge seems to have been saying that UK Coal had to give the disclosure sought by SES if it wanted to engage on the merits at all. If that was all there was to it, I would find it difficult to accept that UK Coal was open to criticism of any kind.' [bold added]

However, unreasonable behaviour can be found in the manner a PAD Respondent opposes a PAD Application. For instance in:

(a) adding to the costs of preparation; and

(b) prolonging a hearing without having real substance to a case - because objective evidence is missing;

Moore-Bick LJ in SES Contracting said, at paragraph 22:

'However, that was not all that there was to it. Reading [84] of the judgment as a whole, I think it is reasonably clear that the judge did think that UK Coal had behaved unreasonably in the manner of its opposition to the application. ...the judge...referred to the fact that UK Coal had, as he put it, deliberately confronted SES with a wall of witness statements which looked impressive and intimidating, thereby seeking to fend it off without providing any of the documents that might have allayed its concerns. After a lengthy hearing the judge had found that SES had solid grounds for supposing that Mr Weston may have been in breach of his fiduciary duties to SES and that he and UK Coal may have colluded to create Centech to the prejudice of SES. I detect in that comment more than a hint of a criticism that UK Coal had acted unreasonably in that it had both added to the costs of preparation and prolonged the hearing without putting forward objective evidence in the form of contemporaneous documents that would have given its case real substance.' [bold added]

Where unreasonable behaviour is found, the next question will be, what departure does that justify, from the general rule on costs in r.46.1(2)?

On the facts in SES Contracting, this became the following question: whether the unreasonable behaviour identified, provided sufficient grounds for ordering UK Coal to pay the whole of SES's costs of the application (paragraph 23)

On this Moore-Bick LJ in SES Contracting concluded that, the first instance judge's exercise of discretion in SES Contracting, had been: (a) flawed; and that (b) the Court of Appeal should exercise its own discretion on the matter (paragraph 25). Moore-Bick LJ:

(1) accepted (paragraph 24) the following approach:

'...a judge has a wide discretion in the matter of costs and that an appellate court should not interfere with his exercise of that discretion unless it is satisfied that he has failed to take into account a relevant factor, had taken into account an irrelevant factor, or reached a conclusion that was plainly wrong.' (paragraph 23)

and

'...the judge may well have taken into account matters which he did not specifically mention but which lent additional support to his decision.' (paragraph 23)

(2) found however, that the first instance judge in SES Contracting had failed to have sufficient regard to an important factor, namely:

'...the general rule that the respondent to an application of this kind is normally entitled to his costs. Although he referred to CPR r.48.1(2) at the outset of his judgment on costs, he does not appear to have fully appreciated its significance or considered what kind of conduct would justify the court in going so far as to order the respondent to bear the whole of the costs. In that context he does not appear to have taken account of the fact that a not insignificant part of the applicant's costs are likely to have been incurred in preparing and issuing the application and filing evidence in support of it. I think it is dangerous to assume that the judge had in mind matters to which he did not refer unless there are cogent grounds for doing so. The fact is that, short of ordering UK Coal to pay the costs of SES on the indemnity basis, the judge's order was the strongest available to him. If one is starting from the position set out in CPR r.48.1(2) one would expect an order of this kind to be made only in a case where it was clearly unreasonable for the respondent to oppose the application or where the manner of his opposition was so unreasonable as to make it appropriate to require him to bear the whole of both parties' costs. Although [counsel for UK Coal] sought to place some reliance on the case of Bermuda International Securities Ltd v KPMG [2001] 1 Lloyd's Rep. PN 392, in which the judge made no order for costs where the respondent had unreasonably resisted the application “root and branch”, I do not find that case very helpful. This court only had to be satisfied, as it was, that it was open to the judge to make that order; whether he could justifiably have gone further was a question that did not arise. In any event, each case is different and decisions on costs must reflect the particular facts of the case, taking into account r.48.1(2) and the policy behind it.' (paragraph 24)

Moore-Bick LJ then expressed the view that:

(1) he would adopt some of the first instance judge's criticism of UK Coal[4], saying that this providedample grounds for justifying a departure from a general rule costs order; but

(2) the first instance judge had gone too far in the extent of his departure from the general rule on costs. As a result, Moore-Bick LJ substituted a 'no order as to costs' order in, as the appropriate order, in respect to the PAD Application costs (paragraph 25).

Gorbachev 327

In Gorbachev 327, Popplewell LJ (with whom Dingemans LJ and Males LJ agreed on this point), after considering[4a]: (a) SES Contracting; (b) Totalise v Motley Fool [2002] 1 WLR 1233; (c) Cartier [2018] 1 WLR 3259; (d) Jofa v Benherst [2020] 1 All ER 849; and (e) Miller Brewing [2004] FSR 5, said, at paragraph 27 (looking at the matter, from the angle of non-party disclosure applications):

'These authorities suggest that the same costs principles should apply to applications for disclosure under CPR r 46.1 as to Norwich Pharmacal applications and other applications against innocent third parties. The principles are that:

(1) it is reasonable for an innocent third party to seek to protect private information by resisting a court order;

(2) as between an innocent claimant and an innocent third party it is more unjust for the third party to bear the costs than the claimant, because it is the claimant who is invoking the legal process to obtain a benefit, and the fact that the benefit is one to which he is legally entitled is not enough to justify an innocent third party having to be out of pocket;

(3) in general the costs should be recovered from the wrongdoer, not the innocent third party, which the third party has no means to achieve;

(4) the principle does not treat a third party as entitled to do no more than adopt a neutral position before it is at risk of having to bear or pay the costs of resisting the application; active opposition, albeit unsuccessful, is not of itself unreasonable behaviour or sufficient to deprive the third party of the benefit of the general principle that the applicant should pay its costs;

(5) if it is reasonable for the third party to resist disclosure, it is entitled to decide on what basis to do so, and with what evidence, without losing its costs protection, provided that it does take an unreasonable course which unnecessarily increases the costs;

(6) there may be cases which require a different order but that will not usually be the case (a) where the third party had a genuine doubt whether the applicant was entitled to disclosure; or (b) where the third party was under a legal obligation not to disclose; or (c) where the legal position was not clear; or (d) where the third party could be subject to legal proceedings or might suffer damage if it gave voluntary disclosure; or (e) where disclosure would or might infringe a legitimate interest of another.'

Later, Dingemans LJ referred to these principles behind r.46.1(2), having '...developed from the common law's protection of third parties against whom disclosure was sought...' (paragraph 47)

Popplewell LJ added, at paragraph 29:

'...in relation to (6) ... these were not intended by Aldous LJ in para 30 of Totalise v Motley Fool to be an exhaustive list, or a rigid straight jacket, as to the circumstances in which the general principle may be departed from. CPR r 46.1(3) allows the general principle to be displaced where the circumstances justify it, and the circumstances of individual cases are infinitely variable. However, they are listed as alternatives, and give guidance that each will usually be sufficient to prevent the general rule being displaced. It is significant that a number of them cater for the position where the relevant criterion is unclear or “might” exist. Where these matters are not clear, it may often be disproportionate for the parties to seek to have them resolved, or address detailed evidence to them, if they are relevant only to costs.'[4b]

Norwich Pharmacal orders

Norwich Pharmacal orders can be made, requiring disclosure from third parties. For other authorities on the general principles applicable to the award of costs, when Norwich Pharmacal orders are made, see:

(1) Jofa Ltd v Benherst Finance Ltd [2019] EWCA Civ 899 [2020] 1 All E.R. 849, Court of Appeal (Sir Terence Etherton MR; Leggatt LJ) on 24.5.19[5];

(2) Filatona Trading Ltd v Quinn Emanuel Urquhart & Sullivan UK LLP [2024] EWHC 2751 (Comm); [2025] Costs L.R. 107, High Court (Calver J) on 30.10.24 [6];

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[1] In Filatona Trading Ltd v Quinn Emanuel Urquhart & Sullivan UK LLP [2024] EWHC 2751 (Comm); [2025] Costs L.R. 107, Calver J gave a short summary of Bermuda International Securities Ltd v KPMG (a Firm) [2001] EWCA Civ 269 ('Bermuda'). Calver J said, at paragraph 15:

'In Bermuda International Securities Ltd v KPMG (a Firm) [2001] EWCA Civ 269 the Court of Appeal thought it impossible to impugn the judge's exercise of discretion in ordering that the costs of an application for pre-action disclosure which had been resisted "root and branch", and of giving the disclosure, should be costs in the case if an action was brought but that, if no action was brought, there be no order as to costs.'

Later, Calver J said, at paragraph 16, of Bermuda, and SES Contracting Ltd v UK Coal Plc [2007] EWCA Civ 791, that:

'In those two cases, however, the applicant had a prospective claim against the respondent itself for alleged wrongdoing, and the respondent vigorously contested the application as a result.'

[1a] In Filatona Trading Ltd v Quinn Emanuel Urquhart & Sullivan UK LLP [2024] EWHC 2751 (Comm); [2025] Costs L.R. 107, Calver J, at paragraph 14, gave a short summary of SES Contracting Ltd v UK Coal Plc [2007] EWCA Civ 791 ('SES Contracting'). Calver J said, at paragraph 14:

'In the SES Contracting case the applicant sought pre-action disclosure on the basis that it had a prospective claim against the respondent, UK Coal, for participating in a dishonest conspiracy to steal the applicant's business. UK Coal actively and unsuccessfully opposed the application. The Court of Appeal set aside the judge's order requiring UK Coal to pay the costs of the application, holding that it had not been unreasonable for UK Coal to oppose the application, albeit that the manner of its opposition had been unreasonable. The latter fact was held to justify departure from the general rule, but only to the extent of making no order as to costs.'

Later, Calver J said, at paragraph 16, of SES Contracting and another case called Bermuda International Securities Ltd v KPMG (a Firm) [2001] EWCA Civ 269, that:

'In those two cases, however, the applicant had a prospective claim against the respondent itself for alleged wrongdoing, and the respondent vigorously contested the application as a result.'

See also Gorbachev v Guriev [2023] 1 WLR 2457, wherein Popplewell LJ summarised SES Contracting, at paragraphs 21 (quoted in another footnote)

[1b] The two authorities, for which there are only Westlaw Case Digests for - as far as the author can find, are:

(1) Beckett Bemrose & Hagan Solicitors v Future Mortgages Ltd [2010] EWHC 1997 (QB), High Court (HHJ Seymour QC sitting as a Judge of the High Court) on 12.7.10;

(2) Ackroyd v Hollely [2013] 1 WLUK 168, County Court in Leeds (Judge Gosnell) on 16.1.13.

[2] Section 33 of the Senior Courts Act 1981 is entitled 'Powers of High Court exercisable before commencement of action' reads, in its entirety (it is s.33(2) that is particularly relevant):

'(1) On the application of any person in accordance with rules of court, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say-

(a) the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject-matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings; and

(b) the taking of samples of any such property as is mentioned in paragraph (a), and the carrying out of any experiment on or with any such property.

(2) 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.

(3) This section applies in relation to the family court as it applies in relation to the High Court.'

[3] Section 52 of the County Courts Act 1984 is entitled 'Powers of court exercisable before commencement of action' and reads (it is s.52(2) that is particularly relevant)

'(1) On the application of any person in accordance with rules of court, the county court shall, in such circumstances as may be prescribed, have power to make an order providing for any one or more of the following matters, that is to say-

(a) the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject-matter of subsequent proceedings in the court, or as to which any question may arise in any such proceedings; and

(b) the taking of samples of any such property as is mentioned in paragraph (a), and the carrying out of any experiment on or with any such property.

(2) On the application, in accordance with rules of court, of a person who appears to the county court to be likely to be a party to subsequent proceedings in that court the county court shall, in such circumstances as may be prescribed, 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.

(3) This section is subject to any provision made under section 38;'

[3a] The White Book 2026 commentary, paragraph 46.1.2 is entitled 'Rule 46.1: Effect of rule' and states:

'In relation to pre-commencement disclosure the court will normally award the costs of the application and the costs of complying with any order for disclosure, inspection, etc., in favour of the party against whom the order is sought. If, however, that party has unreasonably opposed the application or failed to comply with any relevant pre-action protocol, the court may well make a different order.' [bold added]

[4] In SES Contracting Ltd v UK Coal Plc [2007] EWCA Civ 791, Moore-Bick LJ, at paragraph 25, said:

'After nearly three days the judge was well placed to assess not only the nature of the evidence filed by UK Coal but also the extent to which its approach to the application had affected the preparation for the hearing and the hearing itself. I see no reason to differ from his assessment and I would therefore approach the question of costs on the basis that the criticisms he made were well-founded. In my view there was ample material to justify a departure from the general rule...'

[4a] In Gorbachev v Guriev [2023] 1 WLR 2457, Popplewell LJ said, under the heading 'The authorities', at paragraphs 21 to 26:

'In SES Contracting [2007] 5 Costs LR 758, this court was concerned with an application by SES for pre-action disclosure under CPR r 31.16 on the grounds that it had a prospective claim against UK Coal for participating in a dishonest conspiracy to steal SES's business. UK Coal actively and unsuccessfully opposed the application, putting in evidence and advancing arguments as to why the factual basis for the application could not be supported. This court set aside the judge's order requiring UK Coal to pay the costs of the application, holding that it had not been unreasonable for it to oppose SES's application, although the unreasonable manner in which it had done so justified departure from the general rule to the extent of making no order for costs. Moore-Bick LJ, giving the leading judgment, said this in relation to the predecessor of CPR r 46.1 at para 17:

“Although a respondent to an application may incur some costs merely in considering what response to make to an application of this kind, in most cases he will only incur substantial costs if he opposes it. By laying down a general rule that the respondent will be awarded his costs, therefore, I think that the Rules implicitly recognise that it will not usually be unreasonable for him to require the applicant to satisfy the court that he ought to be granted the relief which he seeks. The reason for that (if it be necessary to find one) lies, I think, in a recognition that a private person who is not a party to existing litigation which brings with it an obligation of disclosure is entitled to maintain the privacy of his papers unless sufficient grounds can be shown for overriding it and that it is for the person seeking to invade that privacy to justify doing so. At all events, the rule is clear in its terms and provides the point of departure for a judge dealing with the costs of an application of this kind.”

He went on to say at para 21:

“If it was reasonable for UK Coal to oppose the application at all, it was surely entitled to decide on what basis and with what evidence it wished to do so, provided only that it did not take a wholly unreasonable course which unnecessarily increased the costs. If the respondent to an application of this kind decides to contest the allegations against him on the basis of witness statements unsupported by any contemporaneous documents, he runs the risk that the court will place less weight on that evidence than it might otherwise have done, but in my view that does not of itself make his behaviour unreasonable.”

Totalise v Motley Fool [2002] 1 WLR 1233 concerned a Norwich Pharmacal application against an innocent third party, Interactive, as operator of a website on which statements which were defamatory of the claimant had been posted by someone under the pseudonym “Zeddust”. The order sought the identity and registration details of Zeddust, as well as removal of the content. Interactive appeared at the hearing of the application and took a neutral stance. The judge ordered Interactive to pay the claimant's costs. This court allowed the appeal and ordered the claimant to pay Interactive's costs. At para 18 Aldous LJ, giving the leading judgment, rejected the submission of counsel for the claimant that the applicable rule was CPR Pt 44 providing for the general rule that costs follow the event. He said that a closer analogy was with applications for pre-action disclosure, to which CPR r 48.3, the predecessor to CPR r 46.1, applied. At paras 29–30 he said:

“29. … Norwich Pharmacal applications are not ordinary adversarial proceedings, where the general rule is that the unsuccessful party pays the costs of the successful party. They are akin to proceedings for pre-action disclosure where costs are governed by CPR r 48.3. That rule, we believe, reflects the just outcome and is consistent with the views of Lord Reid and Lord Cross in the Norwich Pharmacal case. In general, the costs incurred should be recovered from the wrongdoer rather than from an innocent party. That should be the result, even if such a party writes a letter to the applicant asking him to draw to the court's attention to matters which might influence a court to refuse the application. Of course such a letter would need to be drawn to the attention of the court. Each case will depend on its facts and in some cases it may be appropriate for the party from whom disclosure is sought to appear in court to assist. In such a case he should not be prejudiced by being ordered to pay costs.

“30. The court when considering its order as to costs after a successful Norwich Pharmacal application should consider all the circumstances. In a normal case the applicant should be ordered to pay the costs of the party making the disclosure including the costs of making the disclosure. There may be cases where the circumstances require a different order, but we do not believe they include cases where: (a) the party required to make the disclosure had a genuine doubt that the person seeking the disclosure was entitled to it; (b) the party was under an appropriate legal obligation not to reveal the information, or where the legal position was not clear, or the party had a reasonable doubt as to the obligations; or (c) the party could be subject to proceedings if disclosure was voluntary; or (d) the party would or might suffer damage by voluntarily giving the disclosure; or (e) the disclosure would or might infringe a legitimate interest of another.”

Para 29 of Totalise v Motley Fool was cited with approval by Lord Sumption JSC in Cartier [2018] 1 WLR 3259 at para 12. It was also referred to by Leggatt LJ in Jofa v Benherst [2020] 1 All ER 849 where he said at para 35:

“The Court of Appeal also made the point (at para 29 of the judgment) that Norwich Pharmacal applications are not ordinary adversarial proceedings, where the general rule is that the unsuccessful party pays the costs of the successful party, and that in general it is just that the applicant should recover its costs of obtaining the information that it needs from the wrongdoer rather than from an innocent party. It is relevant in that regard that, if the party from whom disclosure is sought is ordered to bear its own costs, or even to pay costs incurred by the applicant, it has no means (unlike the applicant) of recovering those costs from the wrongdoer.”

Miller Brewing [2004] FSR 5 was concerned with an order for delivery up of beer which infringed the claimants’ trademarks, pursuant to section 16 of the Trade Marks Act 1994, from Mersey Docks, who were innocent third parties in possession of the beer. Mersey Docks sought and were granted their costs of the application, relying on the position in Norwich Pharmacal cases by analogy. Neuberger J said at para 30:

“The logic behind that general rule [in Norwich Pharmacal cases] is that, where an innocent third party has reasonably incurred legal costs to enable a claimant to obtain relief, then, as between the innocent third party and the innocent claimant, it is more unjust if the innocent third party has to bear his own legal cost than it is for the innocent claimant to pay them. After all, it is the claimant who is invoking the legal process to obtain a benefit, and the fact that the benefit is one to which he is legally entitled is not enough to justify an innocent third party having to be out of pocket.”

This passage was cited with approval by Lord Sumption JSC in Cartier at para 14.'

[4b] In Gorbachev v Guriev [2023] 1 WLR 2457, Popplewell LJ said, at paragraph 30, for completeness:

'I would not, however, accept [counsel for the claimant's] subsidiary argument that the Norwich Pharmacal cases are to be distinguished on the basis that there is doubt whether in the present case the costs, if ordered to be paid by Mr Gorbachev as between him and the Trustees, could be recovered as part of the costs of the action by Mr Gorbachev from Mr Guriev. I see no reason why, if the costs of a Norwich Pharmacal application can be treated as costs of the action against the wrongdoer, as the authorities state they can, the same is not true of the costs of a disclosure application under CPR r 31.17 . Mr Belshaw was unable to identify any reason. Section 51 of the Senior Courts Act 1981 empowers the court to award costs of and incidental to all proceedings. CPR r 44.2(6)(e) permits orders for costs relating to particular steps in the proceedings. These are sufficient to give the court the necessary powers. Foxton J reached a similar conclusion in respect of a liquidator's costs of seeking third party disclosure pursuant to section 236 Insolvency Act 1986, drawing an analogy with third party disclosure applications under CPR r 31.17, in Hotel Portfolio II UK Ltd v Ruhan [2022] Costs LR 1285 at para 54. (Of course, this is not to say that Mr Gorbachev should recover the costs of the jurisdiction application if he is successful in his action against Mr Guriev: the present position is that his application for third party disclosure has been refused as being too wide; I say nothing about what order for the costs of the third party disclosure application should be made in the underlying action if the claim succeeds, which will be a matter for the trial judge.)'

[5] In Jofa Ltd v Benherst Finance Ltd [2019] EWCA Civ 899 [2020] 1 All E.R. 849, Leggatt LJ said, at paragraphs 31 to 39:

'While accepting that there can be no absolute rule in the matter, I find it hard to envisage circumstances in which it would be just to award costs against a respondent to a Norwich Pharmacal application who, before agreeing to disclose documents, has done no more than require the applicant to satisfy the court that such an order is appropriate.

The starting point, as I see it, is that a person from whom disclosure of documents or other assistance is sought under the Norwich Pharmacal principle does not owe any legal duty to the party seeking assistance to provide information without a court order. It is true that in the Norwich Pharmacal case itself Lord Reid stated that a person who gets mixed up in wrongdoing, albeit without being at fault or incurring personal liability, "comes under a duty to assist the person who has been wronged by giving him full information": see [1974] AC 133, 175. However, as explained by Lord Sumption in Singularis Holdings Ltd v PricewaterhouseCoopers [2014] UKPC 36; [2015] AC 165, para 22, the "duty" referred to by Lord Reid in this statement was "not a legal duty in the ordinary sense of the term" but was "simply a way of saying that the court would require disclosure". Lord Sumption returned to this point in his judgment (with which all the other Justices agreed) in Cartier International AG v British Sky Broadcasting Ltd [2018] UKSC 28; [2018] 1 WLR 3259, para 11, where he said:

"As Lord Reid himself put it in Norwich Pharmacal [1974] AC 133, 175, the intermediary came under the duty without incurring personal liability. This is really only another way of saying that the court had an equitable jurisdiction to intervene. Lord Kilbrandon put the point very clearly in his own speech. Citing the South African decision in Colonial Government v Tatham (1902) 23 Natal LR 153, 158, he said that 'the duty is said to lie rather on the court to make an order necessary to the administration of justice than on the respondent to satisfy some right existing in the plaintiff': [1974] AC 133, 205."

In the Norwich Pharmacal case two members of the House of Lords made observations about how the costs of applications should be dealt with in future cases. Lord Reid said (at 176):

"If the respondents have any doubts in any future case about the propriety of making disclosures they are well entitled to require the matter to be submitted to the court at the expense of the person seeking the disclosure."

Lord Cross expressed a similar opinion, stating (at 199) that:

"in any case in which there was the least doubt as to whether disclosure should be made the person to whom the request was made would be fully justified in saying that he would only make it under an order of the court. Then the court would have to decide whether in all the circumstances it was right to make an order. … The full costs of the application and any expense incurred in providing the information would have to be borne by the applicant."

In Totalise plc v The Motley Fool Ltd [2001] EWCA Civ 1897; [2002] 1 WLR 1233, para 33, Aldous LJ, giving the judgment of the Court of Appeal, expanded on the circumstances in which the applicant should be ordered to pay the costs of the party making the disclosure. While recognising that there may be cases where the circumstances require a different order, he expressed the court's view that these do not include cases where:

"(a) the party required to make the disclosure had a genuine doubt that the person seeking the disclosure was entitled to it; (b) the party was under an appropriate legal obligation not to reveal the information, or where the legal position was not clear, or the party had a reasonable doubt as to the obligations; or (c) the party could be subject to proceedings if disclosure was voluntary; or (d) the party would or might suffer damage by voluntarily giving the disclosure; or (e) the disclosure would or might infringe a legitimate interest of another."

Contrary to a submission made..., it is clear that the Court of Appeal was not seeking to limit the circumstances in which the normal order should be made to the cases mentioned in this list.

The Court of Appeal also made the point (at para 29 of the judgment) that Norwich Pharmacal applications are not ordinary adversarial proceedings, where the general rule is that the unsuccessful party pays the costs of the successful party, and that in general it is just that the applicant should recover its costs of obtaining the information that it needs from the wrongdoer rather than from an innocent party. It is relevant in that regard that, if the party from whom disclosure is sought is ordered to bear its own costs, or even to pay costs incurred by the applicant, it has no means (unlike the applicant) of recovering those costs from the wrongdoer.

There is also an analogy, as the Court of Appeal noted in the Totalise case, with applications under CPR 36.16 for preaction disclosure, where costs are governed by what is now CPR 46.1 (quoted at para 23 above). The effect of that rule was considered by the Court of Appeal in SES Contracting Ltd v UK Coal plc [2007] EWCA Civ 791. At para 17 of the judgment, Moore-Bick LJ (with whom the other members of the court agreed) expressed the view that, by laying down a general rule that the person against whom the order is sought will be awarded their costs:

"I think that the Rules implicitly recognise that it will not usually be unreasonable for [that person] to require the applicant to satisfy the court that he ought to be granted the relief which he seeks. The reason for that (if it be necessary to find one) lies, I think, in a recognition that a private person who is not a party to existing litigation which brings with it an obligation of disclosure is entitled to maintain the privacy of his papers unless sufficient grounds can be shown for overriding it and that it is for the person seeking to invade that privacy to justify doing so."

In the SES Contracting case the applicant sought pre-action disclosure under CPR 31.16 on the basis that it had a prospective claim against the respondent, UK Coal, for participating in a dishonest conspiracy to steal the applicant's business. UK Coal actively and unsuccessfully opposed the application. The Court of Appeal set aside the judge's order requiring UK Coal to pay the costs of the application, holding that it had not been unreasonable for UK Coal to oppose the application, albeit that the manner of its opposition had been unreasonable. The latter fact was held to justify departure from the general rule, but only to the extent of making no order as to costs.

It does not follow that a party which may have committed a crime or tort and which resists disclosure of documents that would evidence its complicity will never be required to pay the other party's costs: see the Totalise case at para 31. Where a successful application is made for pre-action disclosure under CPR 31.16 and the applicant has a prospective claim against the respondent for alleged wrongdoing, it seems to me that – as suggested by the Master of the Rolls in the course of argument – it may often be appropriate to make the award of costs dependent on the outcome of any subsequent litigation. As indicated in Hollander on Documentary Evidence (13th edn, 2018) at 1–31, this can be done by ordering the applicant to pay the respondent's costs unless a claim is brought within a specified period, in which case the costs of the application and of complying with the order will be costs in the subsequent proceedings (or alternatively will be reserved to the trial judge in the subsequent proceedings). Such an order would not be inconsistent with CPR 46.1, as subsequent demonstration that the applicant had a good claim against the respondent for substantive relief and that the documents ordered to be disclosed were reasonably required to assist in establishing that claim would be a circumstance warranting departure from the general costs rule. I note that in Bermuda International Securities Ltd v KPMG (a Firm) [2001] EWCA Civ 269 the Court of Appeal thought it impossible to impugn the judge's exercise of discretion in ordering that the costs of an application for preaction disclosure which had been resisted "root and branch", and of giving the disclosure, should be costs in the case if an action was brought but that, if no action was brought, there be no order as to costs.

Such an approach, however, would not be appropriate in the present case where the investors' application for disclosure was based solely on the Norwich Pharmacal principle and was made on the footing that Jofa and Mr Farah had been innocently mixed up in the alleged wrongdoing of Mr Taktouk. The application was not made under CPR 31.16 on the footing that the investors had a prospective claim against Jofa and Mr Farah themselves. Although, as I have recounted, the investors initially made allegations of wrongdoing against Jofa and Mr Farah in correspondence, by the time of the application to the High Court those allegations were no longer maintained.'

[6] In Filatona Trading Ltd v Quinn Emanuel Urquhart & Sullivan UK LLP [2024] EWHC 2751 (Comm), under the heading 'Legal Principles', Calver J said, at paragraph 6 to 17:

'In Totalise plc v The Motley Fool Ltd and Interactive Investor Ltd [2001] EWCA Civ 1897, Aldous LJ stated as follows:

"29. … Norwich Pharmacal applications are not ordinary adversarial proceedings, where the general rule is that the unsuccessful party pays the costs of the successful party. They are akin to proceedings for pre- action disclosure where costs are governed by CPR r 48.3. That rule, we believe, reflects the just outcome and is consistent with the views of Lord Reid and Lord Cross in the Norwich Pharmacal case. In general, the costs incurred should be recovered from the wrongdoer rather than from an innocent party. That should be the result, even if such a party writes a letter to the applicant asking him to draw to the court's attention to matters which might influence a court to refuse the application. Of course such a letter would need to be drawn to the attention of the court. Each case will depend on its facts and in some cases it may be appropriate for the party from whom disclosure is sought to appear in court to assist. In such a case he should not be prejudiced by being ordered to pay costs.

30. The court when considering its order as to costs after a successful Norwich Pharmacal application should consider all the circumstances. In a normal case the applicant should be ordered to pay the costs of the party making the disclosure including the costs of making the disclosure. There may be cases where the circumstances require a different order, but we do not believe they include cases where: (a) the party required to make the disclosure had a genuine doubt that the person seeking the disclosure was entitled to it; (b) the party was under an appropriate legal obligation not to reveal the information, or where the legal position was not clear, or the party had a reasonable doubt as to the obligations; or (c) the party could be subject to proceedings if disclosure was voluntary; or (d) the party would or might suffer damage by voluntarily giving the disclosure; or (e) the disclosure would or might infringe a legitimate interest of another."

As Popplewell LJ rightly observed in Gorbachev v Guriev [2023] 1 WLR 2457 at [29]:

"these were not intended by Aldous LJ … to be an exhaustive list, or a rigid straight jacket, as to the circumstances in which the general principle may be departed from … the general principle [may] be displaced where the circumstances justify it, and the circumstances of individual cases are infinitely variable. However, they are listed as alternatives, and give guidance that each will usually be sufficient to prevent the general rule being displaced."

It follows that the correct starting point on an application for Norwich Pharmacal relief is that the applicant should normally be ordered to pay the costs of the party ordered to give disclosure, including the costs of the application: see also Jofa Ltd v Benherst Finance Ltd [2020] 1 All ER 849 at [22] per Leggatt LJ (as he then was). That "starting point" or "general rule" is less likely to be displaced if the application falls within one of Aldous LJ's five cases above, but it still may be displaced.

Paragraph 29 of Totalise was, as Popplewell LJ pointed out in Gorbachev at [24], cited with approval by Lord Sumption JSC in Cartier International AG v British Telecommunications plc [2018] 1 WLR 3259 at [12]. Lord Sumption stated that "[t]he ordinary rule, absent exceptional circumstances, is that the intermediary is entitled to the costs of compliance".

Leggatt LJ further stated in Jofa at [31]:

"While accepting that there can be no absolute rule in the matter, I find it hard to envisage circumstances in which it would be just to award costs against a respondent to a Norwich Pharmacal application who, before agreeing to disclose documents, has done no more than require the applicant to satisfy the court that such an order is appropriate."

The judge also approved para 29 of Totalise in Jofa where he said at [35]:

"The Court of Appeal also made the point (at para 29 of the judgment) that Norwich Pharmacal applications are not ordinary adversarial proceedings, where the general rule is that the unsuccessful party pays the costs of the successful party, and that in general it is just that the applicant should recover its costs of obtaining the information that it needs from the wrongdoer rather than from an innocent party. It is relevant in that regard that, if the party from whom disclosure is sought is ordered to bear its own costs, or even to pay costs incurred by the applicant, it has no means (unlike the applicant) of recovering those costs from the wrongdoer."

Leggatt LJ noted the analogy with pre-action disclosure applications and referred to the observations of Moore-Bick LJ in SES Contracting Ltd v UK Coal plc [2007] EWCA Civ 791 at [17] that, by laying down a general rule that the person against whom the order is sought will be awarded their costs:

"I think that the Rules implicitly recognise that it will not usually be unreasonable for [that person] to require the applicant to satisfy the court that he ought to be granted the relief which he seeks. The reason for that lies, I think, in a recognition that a private person who is not a party to existing litigation which brings with it an obligation of disclosure is entitled to maintain the privacy of his papers unless sufficient grounds can be shown for overriding it and that it is for the person seeking to invade that privacy to justify doing so."

Popplewell LJ summarised the costs principles as follows at [27] in Gorbachev:

"These authorities suggest that the same costs principles should apply to applications for disclosure under CPR r 46.1 as to Norwich Pharmacal applications and other applications against innocent third parties. The principles are that:

(1) it is reasonable for an innocent third party to seek to protect private information by resisting a court order;

(3) in general the costs should be recovered from the wrongdoer, not the innocent third party, which the third party has no means to achieve;

In the SES Contracting case the applicant sought pre-action disclosure on the basis that it had a prospective claim against the respondent, UK Coal, for participating in a dishonest conspiracy to steal the applicant's business. UK Coal actively and unsuccessfully opposed the application. The Court of Appeal set aside the judge's order requiring UK Coal to pay the costs of the application, holding that it had not been unreasonable for UK Coal to oppose the application, albeit that the manner of its opposition had been unreasonable. The latter fact was held to justify departure from the general rule, but only to the extent of making no order as to costs.

In Bermuda International Securities Ltd v KPMG (a Firm) [2001] EWCA Civ 269 the Court of Appeal thought it impossible to impugn the judge's exercise of discretion in ordering that the costs of an application for pre-action disclosure which had been resisted "root and branch", and of giving the disclosure, should be costs in the case if an action was brought but that, if no action was brought, there be no order as to costs.

In those two cases, however, the applicant had a prospective claim against the respondent itself for alleged wrongdoing, and the respondent vigorously contested the application as a result.

In Jofa, whilst the investors initially made allegations of wrongdoing against Jofa and Mr Farah in correspondence, by the time of the application to the High Court those allegations were no longer maintained and Jofa and Mr Farah did not oppose the application (albeit they did not formally consent to it). The Court of Appeal made no order as to the costs of the Norwich Pharmacal application (although in that case Mr Farah and Jofa had acted as litigants in person and accordingly incurred only limited costs). At [44] Leggatt LJ remarked that:

"it is reasonable to expect a person who receives a request to provide information, supported by evidence that the person has been mixed up, albeit innocently, in wrongdoing and that the information is needed for the purpose of proceedings against the wrongdoer, at least to indicate his position and to say whether he is prepared to provide the information voluntarily and, if not, whether and on what grounds he will oppose an application for a Norwich Pharmacal order."'