Asking the other side for more information to support certain facts/arguments is common and accepted in civil litigation. What is not accepted is asking the other side for an excessive amount of information/documents with the hope of finding something to turn speculation/unfounded allegations into actual causes of action, especially before the issue of a claim. This is commonly referred to in case law as a fishing expedition.
The law
The Civil Procedure Rules (CPR) Part 18.1 states that:
“(1) The Court may at any time order a party to –
(a) clarify any matter which is in dispute in the proceedings; or
(b) give additional information in relation to any such matter,
Whether or not the matter is contained or referred to in a statement of case.”
Barness and Others v Formation Group & Others [2018] EWHC 1228 (Ch)
Background
The Claimants alleged that the Defendant had made fraudulent statements to induce them to invest in three investment schemes. They submitted that they relied on these statements resulting in substantial losses.
The Claimants made an application under CPR Part 18 for the Defendants to supply information that identified the individuals who prepared the memorandums along with information detailing how the statements were prepared. They submitted that this information was reasonably necessary and proportionate to enable the Claimants to prepare their case and was required before they served their Particulars of Claim.
Decision
The main question for the Court was whether the further information sought was reasonably necessary and proportionate to enable the Claimants to prepare their own case. ‘Preparing their own case’ did not include information that they would need to present their case at trial or any intermediate stage in the life of this litigation. Although the information could assist the Claimant to plead a more detailed case, it was clear that the Particulars of Claim could be served in its current state.
The Court disagreed with the Claimants that the further information sought was necessary for the Particulars of Claim to be served and, therefore, dismissed their application.
Comment
It is an unusual practice for the Court to order disclosure or further information under CPR Part 18 before the pleadings are served. By doing so, the Court would require one side of the parties to provide information at the outset to help the other side to formulate a case against him/her.
The Claimant in this case could have:
(1) served the Particulars of Claim on the Defendant first;
(2) see how those allegations were defended and what disclosure was given by the Defendants; and
(3) subsequently decided on whether to apply for specific disclosure or inspection of documents under CPR Part 31.
How can Nelsons help
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you need any advice concerning the subject discussed in this article, please do not hesitate to contact Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us