Applications for pre-action disclosure — not such a high hurdle after all

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The Court of Appeal has given clarification on the threshold that an applicant must meet in order to obtain pre-action disclosure.

Under rule 31.16 of the Civil Procedure Rules, the court may make an order for pre-action disclosure only where: the applicant and respondent are likely to be the parties to subsequent proceedings; and the documents sought by the applicant would be covered by standard disclosure in subsequent proceedings (together the ‘jurisdictional threshold’) and pre-action disclosure is desirable for fairness, to assist in avoiding proceedings, or to save costs (‘discretionary test’).

In the case of Smith v Secretary of State for Energy & Climate Control [2013] EWCA Civ 1585, the applicant had worked for the National Coal Board for 30 years, spending many of those years in a noisy underground environment. He believed that he had suffered noise-induced hearing loss as a result…

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