Deputy Judge finds power to grant permission to serve an application for pre-action disclosure out of the jurisdiction

23/11/17

Catherine Newman QC, sitting as a Deputy Judge in the Chancery Division, has confirmed the novel proposition that a gateway for permitting service of an application for pre action disclosure out of the jurisdiction is to be found in paragraph 3.1(20)(a) of Practice Direction 6B which provides that permission may be granted where “a claim is made under an enactment which allows proceedings to be brought and those proceedings are not covered by any of the other grounds referred to in this paragraph”.

In dismissing an application to set aside an Order made by Master Teveson permitting service of the application form in New York, the Deputy Judge decided that section 33(2) of the Senior Courts Act 1981, which empowers the High Court to order a person who “appears to the court to be likely to be a party to subsequent proceedings” to disclose documents, was an enactment which allows proceedings to be brought as an application made under CPR 31.16 “for disclosure before proceedings have started” itself constituted “proceedings”. In doing so, she rejected the Applicants’ submissions that PD6B para 3.1(20)(a) contemplated substantive proceedings begun by the issue of a claim form as indicated by CPR 7.2(1) and that section 33(2) simply provided for disclosure to be made within anticipated proceedings whose legal basis was to be found elsewhere.

Obex Securities LLC v ED&F Man Capital Markets LLP [2017] EWHC 2965 (Ch) is the first time the Court has determined the issue whether there is jurisdiction to permit service of an application for pre action disclosure under CPR 31.16 out of the jurisdiction. In Clermont Energy Partners LLP v SDP Services Limited [2016] EWHC 1328 (Comm) argument on the jurisdiction issue was heard at the same time as the substantive application.  Having decided that the pre-action disclosure sought should not be ordered, Blair J. expressed “considerable doubts” whether it was possible to serve an application for it out of the jurisdiction without determining the issue.

There being no suggestion in the SCA 1981, the CPR or the White Book, of the existence of any power to permit service of such an application out of the jurisdiction, it had been assumed by commentators that there was none: see, eg, Hollander, Documentary Evidence (12^th ed. 2015), at 1-27.

Permission to appeal was refused but the application for pre-action disclosure was stayed pending an application for permission to appeal on the jurisdictional issue to the Court of Appeal. 

The judgment is here.