Success with a claim ultimately lays in the evidence presented before the court. The court must balance the legal arguments against the evidence before it to conclude the outcome of a dispute. Pre-action disclosures, which require the disclosure of documents before a claim has been made, can be invaluable in assessing the likelihood of such success.
Introduction
Parties’ positions change throughout the course of litigation as more evidence is exchanged in accordance with court directions, and so they must be prepared to regularly review their strengths and weaknesses.
This is not as simple as it sounds, as at the juncture at which disclosure is ordinarily ordered, parties will have incurred legal costs, which can sometimes make it difficult for them to cut their losses and accept the reality of a situation. This is unfortunate as it is not until all evidence has been exchanged that everyone’s cards will be on the table.
Pre-action approaches to the other side are always sensible
Attempts should therefore be made by prospective claimants and defendants, prior to the issuing of a claim, to better understand the facts, any potential hurdles they will need to overcome and to manage their risk.
- Pre-action protocols are in place to assist with this by requiring parties to comply with various obligations before proceedings are issued.
- One such obligation requires parties to disclose key documents relevant to the issues in dispute, regardless of whether they adversely affect their own cases, prior to the commencement of proceedings. While this does not address expert and witness evidence, which come at a later stage once proceedings have begun, the material exchanged by way of disclosure is a strong indicator of a party’s success or failure.
Where a party is dissatisfied with the pre-action disclosure provided by the other side, an application can be made to the court seeking an order for that party to disclose specific documents. This serves as an important instrument as only once have the key documents been considered will a potential party to litigation make an informed decision on how to proceed. This can encourage parties to engage in settlement discussions prior to the commencement of proceedings.
Criteria to be satisfied
To avoid orders for pre-action disclosure being misused, a court will only grant one if:
- both sides are likely to be parties to subsequent proceedings
- there is a real prospect – if not a certainty or likelihood – of court proceedings between the parties
- the request for documents is only for those documents which are strictly necessary to address issues that are likely to arise if proceedings are commenced and likely to be disclosed at a later stage in the proceedings
While such an application is ordinarily utilised by prospective claimants, prospective defendants should also consider making an application for pre-action disclosure to properly assess the claim against them and whether their funds would be better spent making an early offer for settlement.
Our expert litigation team is extremely experienced in all aspects of dispute resolution and commercial litigation claims.
