Do You Need Pre-action Disclosure Applicatio...

This note has been prepared in order to provide guidance to defendants on the topic of Pre-action disclosure applications.

Such applications may be made under 33 of the Supreme Court Act 1981 (c.54) or section 52 of the County Courts Act 1984 (c.28).

Avoid Them

These applications have historically been seen by many claimant firms as a serious revenue stream but they are very often fully avoidable. Things have changed now in any event, because the costs of such applications are covered (arguably at least) by CPR 45.29H. But they can nevertheless present a trap for the unwary. But own-solicitors’ costs are still to be paid in addition to those fixed costs and disbursements, all of which add to overall claim spend.

An application will frequently be made at the first available opportunity, much in the same way that a claimant’s solicitor would look to remove a claim from one of the Portal Processes or look to issue substantive proceedings in a motor case that would, but for the issue of proceedings, be captured by a fixed costs regime in CPR 45.

Consequently, defendants should be proactive in providing the information and/or documentation requested. Many firms have adopted the practice of including requests for information and documentation in their standard letters of claim (the PIPAP template letter is the same) because their pro-forma nature means that the request is often overlooked/not addressed or not taken seriously.

If there is a difficulty in providing the information, or if difficulty is anticipated, then a request should be made as soon as possible for an extension of the time for providing the information. That will stand you in good stead when it comes to the costs of the application.

If Not Avoidable/Avoided

If the application is not defended (some are - e.g. premature issue) then it will, most likely, settle by consent prior to any hearing. The costs of these applications are usually met during the claim and not, for example, left over to the end of the claim. However, that is procedurally wrong – CPR 46.1(2) demonstrates that the general rule is that the applicant will pay the costs, including the respondent’s costs of complying with the order. Those costs will then form part of the applicant’s claim.

Practically speaking, though, it is very often the case that once an application has been made, the defendant will admit liability and start to deal with the claim. A view is therefore generally taken and the costs of the application are agreed.

The costs of such applications are often agreed by the insurance company file handler. Because costs matters have been outsourced for so many years, insurance company file handlers have simply not had to deal costs assessments – that can lead to handlers paying too much. With the advent of CPR 45.29H, however, this is a much more straightforward exercise and panel firms need not become involved.

Double Recovery

In a case where there has previously been an application for pre-action disclosure, you must also be astute to ensure that the claimant’s solicitors do not recover those costs for a second time when they submit the claim for costs of the claim itself. Full instructions to your costs panel in this respect are essential. Keep an eye out for the court fee(s) appearing in a statement of costs for summary assessment as that will give you an indication as to whether the other costs have been included too.

In the event the claimant’s claim is funded by way of a CFA with a success fee which is recoverable between the parties, then the success fee that you were not previously able to pay on the costs of the application by reason of CPR 44.3A(1) may be claimed at the conclusion of the claim by reason of CPR 44.3A(2) (as they were before the amendments to CPR).