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Unlawful fishing expeditions

View profile for Andrew Turner
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Fishing for information from the other side is a common feature of litigation.  Extracting admissions, acknowledgements and evidence from the other side is all part of the tactical scuffling that goes on in legal proceedings.

The Court Rules allow you to apply for a Court Order requiring the other side to disclose information to you. But it’s not quite as easy as that. In the recent case of Barness v Formation Group plc, a party applied for such an Order and the High Court refused to grant it.

The claimant in this case had not yet issued proceedings and was trying to build a case against the defendants based on what it considered to be fraudulent statements made by the defendants which, according to the claimant, had encouraged the claimant to make certain investments. 

The claimant did not have sufficient information to properly and fully formulate its case and it needed further information from the defendants in order to be able to commence the claim. The claimant therefore make a request under Court Rule 18.1 which, in simple terms, provides that the Court may at any time order a party to clarify any matter which is in dispute in proceedings. 

The claimant duly made the application to Court on this basis and argued that there was clearly a dispute and that clarification was required from the other side in order that the claimant could finalise its case.

But there was a problem. With hindsight, an obvious problem. What the claimant was seeking was information in order to better understand whether it could bring a claim against the defendant. The purpose of Rule 18.1 is not to allow a party to investigate whether it has a claim but to clarify aspects of a claim that has already been formulated. What the claimant was doing was fishing. Hunting for something that it could catch and then use.

The claimant was effectively saying to the Court that it could not finalise its Particulars of Claim without obtaining further information from the defendant.  The judge was not sympathetic. His view was that the claimant should argue its case based on the information that it had available to it and that it was simply not appropriate to order the other party to have to produce a whole raft of material which would assist the claimant in understanding whether it had any additional or better claims against the defendant.

The claimant’s application for further information was therefore dismissed.

There are separate provisions in the Court Rules that allow a party to apply for an Order requiring a potential defendant to supply disclosure of specific documents before proceedings have been commenced.  It is possible that the claimant in the Barness v Formation Group case would have been better advised to make an application on this basis (ie to apply for specific documents) rather than seeking clarification under Court Rule 18.1. 

But the message to take away from this case is clear: fishing for information before you have actually commenced proceedings and when your claim is at a speculative stage is going to be met with resistance by the Court.  If there is further information that you as a claimant require in order to bolster or expand your claim, you may be better off bringing your claim based on what you already know and then applying to amend your case once you have received disclosure of documents from the other side during the litigation process.