An interesting article by Vijay Bange and Matthew Friedlander from Duane Morris looking at some of the ways pre-action disclosure is managed by the courts. Pre-action disclosure can be a powerful and useful weapon that can help narrow the issues and potentially resolved certain issues, but it must also be appropriately used.
In Taylor Wimpey LTD v Harron Homes LTD [2020 EWHC] 1190 (TCC) QBD (TCC) (Fraser J), the judge determined that those documents necessary or required for the expert determination were a matter for the expert-determination process, and not the court. Equally, the judge made it clear that the court would not tolerate requests that it considers to be intended to frustrate, impede or interfere the legal process.
In these cases, it is important to understand the IT systems in play and to understand where relevant documents are likely to exist - so that requests can be targeted and proportionate. This is a process which is wise to commence at an early stage of any dispute, so that the information can be appropriately incorporated into the legal strategy and process.
The ability to make pre-action applications for disclosure is a very helpful tool, and if there are documents that early disclosure of will assist to narrow issues in dispute, or even resolve matters, that is in keeping with the overarching purpose of the CPR. However, the message from Taylor Wimpey LTD v Harron Homes LTD is that if such applications are made before going through any existing agreed (i.e.contractual) ADR mechanism, then such applications may be premature. However conversely, if early disclosure will assist the agreed expert determination, and make it more meaningful, that may be treated differently by a court.