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Such applications are made by originating summons supported by an affidavit setting
out the grounds for saying that the respondent is likely to be a party to such
proceedings, why he is thought to have the documents and why they are relevant to
issues in that action.
(ii)
The position under the CPR
In England and Wales, the power to order pre-action disclosure is no longer limited to
personal injury and death cases. CPR 31.16 now permits such orders to be made in all
kinds of cases in respect of specified documents or classes of documents, provided
they are documents which (if proceedings were started) would come within the
respondent's duty to give standard disclosure.
As pointed out by Hollander and Adam, this broadening of pre-action disclosure is
closely linked to the introduction of pre-action protocols and the prominence now
given to facilitating settlement as an objective of civil procedure in England and
Wales.
Thus, CPR 31.16(3)(d) lists as discretionary factors in favour of ordering
disclosure before proceedings, not only that such disclosure is desirable in order to
dispose fairly of the anticipated proceedings or to save costs, but also in order to
"assist the dispute to be resolved without proceedings". As H&A indicate, this is
intended to promote Lord Woolf's "cards on the table" approach to dispute resolution,
so that inclusion of this factor is likely to increase the range of cases where pre-action
disclosure might be ordered: disclosure which is not justified on the traditional
grounds may be ordered where the court believes that the revelation of key documents
would be conducive to settlement.
Notes
H&A, §2-04.
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