Clyde & Co successfully defend a pre-action disclosure application

  • Legal Development 24 October 2023 24 October 2023
  • Asia Pacific, UK & Europe

  • Regulatory risk

Clyde & Co represented an NHS Trust in a clinical negligence claim in which it was alleged that there was a delay in diagnosis of malignancy which resulted in less treatment options being available which would have improved symptoms and extended life expectancy.

The claim was defended on several fronts. It was denied that there was any negligent delay. The Trust and the wider NHS was overwhelmed in its response to the Covid-19 pandemic at the relevant time. In any event, no other treatment options would have been available because of the deceased’s pre-existing co-morbidities and the fact that the malignancy had metastasised by the time of diagnosis. It was unlikely that systemic palliative treatment would have been offered at the relevant time because of the Covid-19 pandemic. 

Pre-action disclosure application

The Claimant made an application for pre-action disclosure of documents relating to the impact of the Covid-19 pandemic on the provision of systemic palliative treatment. The application was extremely wide in scope and sought disclosure of all Trust and nationwide policies relating to the provision of oncology treatment throughout a three month period, all meeting minutes, correspondence and bulletins/communications relating to the provision of oncology services due to the Covid-19 pandemic.

CPR 31.16(3) sets out the criteria that must be satisfied to for the court to order pre-action disclosure, which is as follows:-

(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 has 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.

CPR 31.16 (a) and (b) were admitted. We defended the application on the grounds that the scope of the request was exceptionally broad so failed to meet CPR 31.16(3)(c). The classes of documents requested would not form part of standard disclosure. Further, the scope of the search required to find these documents would be great and require departmental, Trust level and nationwide policies, meeting minutes, etc. It would not be desirable to order such a large scale search prior to pleadings and cost budgeting. 

In addition, the application failed to meet any of the objectives in CPR 31.16(3)(d). The disclosure request related to the Trust’s secondary causation defence and would be unlikely to lead to disposal of the claim. The Claimant had sufficient information to plead the case.

The application proceeded to a hearing in September 2023 before Deputy District Judge Davies sitting at Reading County Court. The Judge held that the Claimant’s application was too wide in scope, not proportionate and disclosure was unlikely to result in disposal of proceedings. The application was dismissed, and the Claimant was ordered to pay our costs which were summarily assessed. 


PAD applications should be narrowly confined to what is necessary and only seek documents that would fall within standard disclosure. The burden is on the applicant to make out the application, not the respondent to identify documents within the draft order that would fall within standard disclosure.

Clyde & Co’s Healthcare team has a wealth of experience and expertise in advising on such matters, and more. If you require any guidance or support, please contact us using the details below or on 020 7876 5000. 


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