A Pre-Action Disclosure Application, known as a ‘PAD’ is used when one party, usually a Claimant, isn’t certain that they should issue court proceedings and usually needs to see the Defendant’s information before deciding what their next move will be. Therefore, a Claimant is trying to get disclosure from the Defendant in order to assess their position.
PADs are common in personal injury and industrial disease claims, such as in Noise-Induced Hearing Loss claims. PADs are less common in clinical negligence claims. The issuing of court proceedings is such a major event in the life of a claim that a Claimant will only be advised to issue a claim if the claim is sufficiently strong enough. By having all the Defendant’s key documents, the Claimant should be better placed to know whether they should press on, or to stop pursuing the claim.
Before issuing a PAD, a Claimant should have usually asked, in writing, the Defendant to provide all the information that they should have already disclosed. Frequently, a Defendant, their insurers or their solicitors, are so slow to respond to a claim, in breach of the protocols, that if a Claimant has been unable to get a satisfactory response that their only real option is to issue a PAD. A competent solicitor is only able to advise a client whether they should proceed once they have the full information. Some clients switch solicitors if their first lawyers won’t make a PAD, often wanting to drop a claim without having full information.
What is the procedure for making a Pre-Action Disclosure Application?
A Claimant solicitor should first take their client’s instructions before making a PAD, as it is an aggressive act. If a client wants to obtain the early disclosure from the Defendant, then the Claimant solicitor should write to their opponent on several occasions setting out what should have been disclosed and why it is relevant, referring to the relevant protocols.
If there is no response, or an insufficient response, then the Claimant’s solicitor should complete an Application Notice, produce a detailed witness statement with exhibits, and send a fee to the court of £255. An example Application Notice is contained in our Free Legal Library. Once the court has specified a time for the hearing of the application, then the Claimant solicitor should send the papers to the other side.
The procedure governing PADs is contained in Part 31.16 of the Civil Procedure Rules 1998 which state:
Disclosure before proceedings start
(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where –
(a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to those proceedings;
(c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to –
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs.
(4) An order under this rule must –
(a) specify the documents or the classes of documents which the respondent must disclose; and
(b) require him, when making disclosure, to specify any of those documents –
(i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to withhold inspection.
(5) Such an order may –
(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(b) specify the time and place for disclosure and inspection.
Usually, the court hearing does not need to happen, because the parties resolve the specific matter. If the hearing does take place, usually a Claimant would not need to attend the hearing.
Are there any costs risks with a Pre-Action Disclosure Application?
Yes. The standard position is that the Claimant should pay the Defendant’s costs of the application limited to £250, however, if a court determines that a Defendant is at fault for the Claimant having to needlessly issue the application, then a court will usually make the Defendant pay the legal costs of £250, plus the court issue fee.
What happens if a Defendant ignore a Court Order about a Pre-Action Disclosure application?
If this happens, then the Claimant can return to the court to ask for a Penal Notice i.e. as a specific court order has been breached, then a representative of the Defendant risks prison.