Factual and Procedural Background
The Appellant, aged 65, was employed from 1964 to 1994 by Company A (formerly the National Coal Board and later the British Coal Corporation). He worked underground at two collieries between 1964 and 1979 and continued to have underground exposure until 1984. The Appellant alleges that Company A failed to provide adequate hearing protection during his employment, resulting in hearing loss beyond what is expected for his age.
On 2 September 2011, solicitors acting on a Conditional Fee Agreement (CFA) basis sent a letter of claim to the Respondent, the Secretary of State for Energy and Climate Change, as statutory successor to Company A's liabilities. The letter requested disclosure of the Appellant’s medical and personnel records, which were provided, and additionally sought extensive disclosure regarding noise levels at the workplaces and Company A’s knowledge of noise risks, which was refused.
On 8 February 2012, the Appellant applied to the County Court for an order for pre-action disclosure under section 52 of the County Courts Act 1984 and CPR rule 31.16. The District Judge ordered partial disclosure of specific categories of documents related to noise testing, hearing protection, warnings, and safety committee minutes, limited to the period 1964 to 1979 at the two collieries.
The Respondent appealed, and on 30 November 2012, Judge Langan QC allowed the appeal, dismissing the application for disclosure. Permission to appeal to this Court was granted on the basis that the case raised an important point of principle concerning the threshold test for pre-action disclosure.
Legal Issues Presented
- Whether the applicant for pre-action disclosure under CPR 31.16 must establish a minimum threshold of "arguability" or "prima facie" case as a jurisdictional requirement.
- The interpretation and application of the statutory and procedural provisions governing pre-action disclosure, specifically sections 52(2) of the County Courts Act 1984 and CPR rule 31.16.
- The appropriate exercise of judicial discretion in ordering pre-action disclosure, including considerations of the adequacy of evidence supporting the claim and the burden of disclosure on the respondent.
Arguments of the Parties
Appellant's Arguments
- The Appellant contended that he suffered hearing loss due to prolonged exposure to noise at work without adequate protection.
- The evidence, though limited, including his own description of hearing difficulties and work history, was sufficient to establish a reason to believe he might have suffered compensatable injury, justifying disclosure.
- Obtaining a full expert opinion or audiometric report at the pre-action stage would be unduly burdensome and contrary to the policy behind pre-action disclosure provisions.
- The disclosure sought was not excessively onerous, covering only two workplaces and relevant to other potential claims.
- The Appellant’s screening audiogram was privileged and of limited evidential value for the court at this stage.
- Reference was made to the Pre-Action Protocol for Disease and Illness Claims, which supports the disclosure of relevant documents even before medical evidence is provided.
Respondent's Arguments
- The Respondent argued that the Appellant had not satisfied the jurisdictional threshold under CPR 31.16 (3)(a) and (b) because he failed to establish more than a speculative case.
- It was submitted that the Appellant needed to provide medical evidence, ideally a report from an Ear, Nose and Throat (ENT) consultant based on audiometric testing, to show causation and a compensatable injury.
- The Respondent contended that without such evidence, the claim remained a "punt" and thus pre-action disclosure was not justified.
- It was further argued that a screening audiogram, which should have been obtained, was necessary to justify disclosure.
- The Respondent raised concerns about the desirability and proportionality of making a disclosure order given the speculative nature of the claim.
- In oral submissions, the Respondent suggested that if substantial pre-action disclosure were ordered, the Appellant should reciprocate by disclosing his existing audiogram results, invoking principles of fairness and mutuality.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Black v Sumitomo Corporation [2002] 1 WLR 1562 |
Interpretation of CPR 31.16; distinction between jurisdictional threshold and discretion; no requirement of "real prospect of success" at pre-action disclosure stage. |
The Court relied on Rix LJ’s analysis to clarify that the jurisdictional test under CPR 31.16 is low, requiring only that parties would be likely involved if proceedings ensue; merits of claim are considered in the discretion stage. |
| Kneale v Barclays Bank [2010] CLTC 233 |
Consideration of whether an arguable case is required for pre-action disclosure as a jurisdictional threshold; distinction between jurisdiction and discretion. |
Judge Langan followed this decision to require a "prima facie case" to satisfy jurisdiction, but the Court ultimately rejected this as a jurisdictional requirement, placing such considerations in the discretionary stage. |
| Rose v Lynx Express [2004] 1 BCLC 455 |
Approach to conditions under CPR 31.16; whether substantive issues should be decided at pre-action disclosure stage. |
The Court noted that arguability and real prospect of success are relevant to discretion rather than jurisdiction, confirming that pre-action disclosure is not a mini-trial. |
| BSW Ltd v Balltec Ltd [2006] EWHC 822 (Ch) |
Threshold for arguability at pre-action disclosure stage. |
Supported a lower threshold for arguability consistent with Black v Sumitomo, influencing the Court’s view on the jurisdictional test. |
| Pineway Ltd v London Mining Ltd [2010] EWHC 1143 (Comm) |
Consideration of arguability threshold in pre-action disclosure. |
Referenced in assessing the height of the jurisdictional threshold, supporting a lower bar. |
| Furniss v Firth Brown Tools [2008] EWCA Civ 182 |
Authority on claims involving hearing loss without immediate medical evidence. |
Relied on to support the proposition that absence of medical consultation does not preclude claim at early stages. |
| Dunning v United Liverpool Hospitals' Board of Governors [1973] 1 WLR 586 |
Considerations on likelihood of parties being involved in proceedings. |
Referenced in Rix LJ’s analysis to distinguish the meaning of "likely" under the amended statute. |
Court's Reasoning and Analysis
The Court began by examining the statutory framework and CPR 31.16, emphasizing that the jurisdictional thresholds under heads (a) and (b) require only that the applicant and respondent would be likely parties if proceedings were issued, not that it is likely proceedings will be commenced or that the claim has a minimum level of arguability.
Rix LJ’s judgment in Black v Sumitomo was pivotal, clarifying that the test for jurisdiction is low and that merits-related questions belong to the discretionary stage. The Court rejected the approach in Kneale v Barclays Bank that imposed a jurisdictional "arguable case" threshold, holding that such considerations should inform the exercise of discretion rather than jurisdiction.
Applying this principle, the Court found that the Appellant’s evidence, though limited and lacking formal audiometric or expert medical opinion, was sufficient at this stage to provide some reason to believe he might have suffered a compensatable injury. The Appellant’s long history of noise exposure and his subjective account of hearing difficulties were relevant factors supporting this conclusion.
The Court acknowledged that the evidence would be insufficient at trial but recognized the policy purpose of pre-action disclosure to assist claimants in establishing whether to litigate. It also considered the burden of disclosure on the Respondent, which was found to be not excessive, limited to documents from two workplaces.
The Court also noted that requiring detailed expert evidence or audiometric reports at this preliminary stage would be inconsistent with the nature and purpose of pre-action disclosure applications. The Court declined to impose such a requirement, particularly given the limited value of screening audiograms and the role of medical evidence at later stages.
Finally, the Court addressed submissions regarding the Pre-Action Protocol, concluding that while the Protocol encourages disclosure, it does not override the statutory and procedural requirements nor compel disclosure if the statutory test is not met.
Holding and Implications
The Court ALLOWED THE APPEAL and restored the District Judge’s order granting pre-action disclosure. The parties were directed to agree on the details of the disclosure categories and timetable as previously outlined.
The holding clarifies that under CPR 31.16, the jurisdictional test for pre-action disclosure does not require the applicant to demonstrate an arguable or prima facie case. Instead, the court’s discretion governs whether disclosure should be ordered, considering the strength of the evidence and proportionality.
This decision underscores the purpose of pre-action disclosure as a tool to assist claimants in determining whether to pursue litigation without imposing the more stringent evidential requirements applicable at trial. It does not establish new precedent on substantive liability but guides lower courts on the proper approach to jurisdictional and discretionary questions in pre-action disclosure applications.