Disclosure of documents

Disclosure of documents and ‘fishing expeditions’

A “PAD App” is an application to the court for pre-action disclosure of documents.  During court proceedings, the parties will have to disclose to each other any documents that they have pertaining to their case, whether it supports their case or the other side’s case.  The problem is though that to get to that stage, you have to issue a court claim and to avoid the claim being struck out before it gets to the disclosure stage, the claimant has to show that they have a reasonable claim.  But if they don’t have the evidence, they can’t get to that stage.  It’s a paradox.

PAD Apps were introduced to circumvent this problem and provided the applicant met the criteria as set out in CPR 31.16, you were in theory able to get the disclosure brought forward.

When PAD Applications were first introduced, they seemed to be a great step forward for litigators: here was a method by which you could seemingly force your opponent to provide documents before court proceedings began which could possibly help you establish your case and possibly foreshorten proceedings.  Yes, there were a few steps that you needed to overcome like showing that the applicant and respondent were likely to be party to subsequent proceedings, but it would overcome the difficulty that a lot of claimants seemed to face: knowing there was a case but not having the evidence to support it.  But whilst the facility is there, being successful in a PAD Application is becoming increasingly more difficult – with more costs orders being made against the losing party.

In one recent case Brown -v- JMW Solicitors LLP [2022] 2848 (SCCO) the court made it clear that they are not going to allow the system to be abused and let the claimant go on a hunt for evidence without substantiating why they felt there was a case.  Or in legal parlance, the Court was not going to let the claimant go on a “fishing expedition”.

In Brown, the Claimant had used the services of the defendant to bring a successful personal injury claim with the fees of that claim being funded under a no win, no fee agreement supported by ‘after the event’ insurance.  Once the claim was concluded, Brown instructed checkmylegalfees.com (CMLF), a costs recovery outfit which seeks to challenge legal fees in such claims, especially the £644 insurance premium Mr Brown had to pay in this instance.  CMLF claimed that the fee was “less than clear” and after the defendants refused to release a copy of the insurance policy itself, CMLF made a PAD App to get the policy released.  They seemed to be claiming that the fee was some sort of secret commission and, as there had been previous case law ordering a defendant firm to provide such information, CMLF felt justified in making the application.  Surprisingly, CMLF did not lodge any evidence of note in support of the claim including details of why they considered there had been any impropriety on the part of JMW Solicitors LLP.

Costs Judge Rowley was not impressed with the application.  Whilst he accepted that the Claimant was in a Catch-22 situation of requiring the information to substantiate their claim, he felt that their application was a “paradigm example of a fishing expedition”.  Specifically, he stated that:

“It is a basic tenet of litigation that he who asserts must prove. In the situation before me, the claimant’s position is that he does not even need to assert let alone prove commission may be in issue. He simply has to say that the premium is disputed without putting forward any grounds for doing so. Mr Dunne described the claimant as being trapped in a Catch-22 situation. He needed information from the defendant in order to be able to put forward his case: however the defendant refused to provide that information without the claimant’s case having been set out….

The PAD disclosure of documents application therefore failed.

For those who follow costs law, it will be realised that this is the second setback for CMLF in as many weeks with the recent decision of Belsner v CAM Legal Services Ltd criticising, amongst other things, the firm’s business model.

Even so, Brown is not unique in its finding with other, similar applications being unsuccessful as the courts turn down such requests in obvious fishing expeditions.  In short, if you are going to make an application for disclosure of documents, think carefully about your suspicions and whether such an order is truly necessary.  It could backfire and you could be facing a costs order.

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