Clyde & Co successfully defend pre-action disclosure application

Clyde & Co were instructed to represent an NHS Trust in a clinical negligence claim concerning an alleged failure to arrange a follow up in clinic in June 2019 to discuss and arrange a laparoscopic cholecystectomy.

It was admitted that there was a failure to arrange a follow up and that laparoscopic cholecystectomy would likely have been recommended, however, there was no guarantee as to when such surgery would have taken place because the Covid-19 pandemic commenced in March 2020. The Trust and the wider NHS were overwhelmed in its response to the Covid-19 pandemic and a significant amount of theatre activity was delayed. 

Pre-action disclosure application

The Claimant made an application for pre-action disclosure of the waiting lists times for elective cholecystectomies in 2019. 

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:

• the respondent is likely to be a party to subsequent proceedings;
• the applicant is also likely to be a party to those proceedings;
• 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
• disclosure before proceedings have started is desirable in order to;
  • dispose fairly of the anticipated proceedings;
  • assist the dispute to be resolved without proceedings; or
  • save costs.

CPR 31.16 (a) and (b) were satisfied. We disputed the application on the grounds that what was requested was a piece of information, rather than a document or class of documents. The information was not evidenced in a document that would form part of standard disclosure. The Defendant would have to carry out significant further investigations and then create a document specifically for the purpose of responding to the request, containing the information sought. The application was fundamentally misconceived, and we denied that the threshold test set out at 31.16(3)(c) was met. 

In addition, we argued that the application failed to meet any of the objectives in CPR 31.16(3)(d). The Claimant explicitly stated in the application that the disclosure sought is required to enable to Claimant to finalise her investigations and in particular fully particularise her pleadings, such will allow the Claimant to issue and serve court proceedings. The purpose of the application was therefore contrary to sub paragraph (d) as it had not been made to dispose fairly of the anticipated proceedings, nor was it made to assist to dispute to be resolved without proceedings. Issuing and serving proceedings only serves to incur unnecessary, significant costs contrary to sub paragraph (d)(iii) which states the disclosure is desirable in order to save costs.

The application proceeded to a hearing in July 2025 at the Royal Courts of Justice, King’s Bench Division. The Judge held that it was not at all clear that even if the documentation existed for the period sought that it would form part of standard disclosure, that there were numerous other means of eliciting the information sought, the disclosure would not dispose of proceedings or save costs, nor would the costs of making the enquiries requested be proportionate in the circumstances. The application was dismissed, and the Claimant was ordered to pay the Defendant’s costs in full.

Learning

PAD applications should be confined to what is necessary and proportionate to the issues in dispute and only seek documents that would fall within standard disclosure. Further, the application should be genuinely made to meet all of the objectives in CPR 31.16(3)(d).