UK construction & Engineering: Practice and procedure: Pre-action disclosure

By Vijay Bange and Matthew Friedlander

Please Sir may I have some more…

Requests by a party for disclosure of further documents is often a vexed issue, and the motives may in some instances be tactical, and inevitably it’s a costly affair. Recently, its been reported that the insurers for HCC International Insurance Company, PLC in its dispute with Roc Nation LLC (Rapper Jay-Z’s management company), has sought a motion before a New York federal judge seeking disclosure of documents from a UK Broker, and which will entail the discovery requests to be ultimately pursued via the process in the UK courts. Roc Nation has alleged that this is an attempt to “kick the can farther down the road”[1], and is objecting to the motion.

In the UK, applications seeking disclosure of further documents and /or classes of documents is not uncommon. Furthermore, the CPR provides for pre-action disclosure under CPR r.31.16. This can be an effective way to aid early settlement by obtaining delivery up and sight of documents rather than waiting until after proceedings have been issued. A useful tool to avail.

An interesting point has come before the courts concerning applications for Pre-action disclosure in the context of contractually agreed mechanisms for alternative dispute resolution.

In Taylor Wimpey LTD v Harron Homes LTD [2020 EWHC] 1190 (TCC) QBD (TCC) (Fraser J) 13/05/2020, the facts were:

The Parties entered into a Collaboration Agreement.
The Collaboration Agreement provided that disputes shall be referred at any time to an expert determination process.
A pre-action protocol letter was sent.
The Parties concerned had a protocol meeting, but no resolution was achieved.
The Respondent served a notice to refer to expert determination.
The Respondent served a second notice to refer to exert determination.
The Applicant refused to agree to the expert determination process.
The Applicant sought pre-action disclosure of various documents/ categories of documents.
The Judge held that although the jurisdictional threshold for ordering pre-action disclosure was made, it would however not be appropriate for him to exercise discretion to make the order.

In this instance the judge took the approach that those documents necessary or required for the expert determination were a matter for the expert-determination reference, and not the court. Furthermore where the court considers that the request for pre-action disclosure is being used to frustrate, impede or interfere with the ADR mechanisms agreed by parties, such applications may be doomed.

The approach is consistent with that in Birse Construction Ltd v HLC Engenharia e Gestao de Projectos SA [2006] ewhc 1258 (TCC), Jackson J. Here the judge made clear that it is the norm, as a feature of the TCC, for there to be a level of co-operation between the parties, and on that basis in most cases the court is unlikely to make such orders.

The ability to make pre-action applications for disclosure is a very helpful tool, and if there are documents that early disclosure of will assist to narrow issues in dispute, or even resolve matters, that is in keeping with the overarching purpose of the CPR. However, the message from Taylor Wimpey LTD v Harron Homes LTD is that if such applications are made before going through any existing agreed (i.e.contractual) ADR mechanism, then such applications may be premature. However conversely, if early disclosure will assist the agreed expert determination, and make it more meaningful, that may be treated differently by a court.

What approach will the TCC take for pre action applications prior to an adjudication? It is arguable that adjudication is part of the contractual ADR process albeit in construction contracts caught by the Construction Act, a creature of statute implied into all construction contracts.

In circumstances where certain documents were requested by a party and that request was refused by other party, if it transpires that early disclose of the requested documents may have narrowed the issues in dispute , there will inevitably be issue(s) of unreasonable conduct and costs to grapple with.

In any event, what is clear is that if such applications are blatantly tactical to frustrate, impede or interfere with an agreed ADR mechanism they will be met with short shrift.