It may come as a surprise to many solicitors that there is a presumption that the costs of making and complying with an application for pre-action disclosure are to be paid by the party making the application.
Although applications the pre-action disclosure (under CPR 31.16) are often viewed as a useful “costs cash cow” by claimant personal injury solicitors, the costs rules which apply to such applications are in fact as follows:
(2) the general rule is that the court will award the person against whom the order is sought that the person’s costs –
(a) of the application; and
(b) of the complying with any order made on the application.
(3) The court may however make a different order, having regard to all the circumstances, including –
(a) the extent to which it was reasonable for the person against whom the order was sought to oppose the application; and
(b) whether the parties to the application have complied with any relevant pre-action protocol.
It is therefore necessary for a claimant’s solicitor seeking pre-action disclosure to persuade the court to exercise its discretion not to apply the presumption that the defendant should recover its costs (i.e. both the costs relating to the application itself and the costs relating to complying with a pre-action disclosure order).
Where the defendant is in breach of the Pre-action Protocol for Personal Injury Claims this will usually be possible.
Paragraph 3.10 and 3.11, and Annex B of the Protocol set out helpful (although non-exhaustive) lists of documents, in various categories of personal injury claims, which a defendant should disclose with the letter of reply to the letter of claim: and this part of the Protocol is frequently breached, leaving the defendant open to liability to pay the costs of an application for such pre-action disclosure to be ordered by the court.
Where, however, pre-action disclosure is sought of documents for which a defendant has some grounds for disputing disclosure, this presumption about costs can be difficult for a claimant to rebut.
For example, a solicitor pursuing a road traffic claim which the defendant’s insurers appear to be suggesting is fraudulent, may prefer to have sight of documents not listed in Annex B of the Protocol, such as any insurers’ documents relating to previous claims by the same claimant, which could help judge the credibility of their own client, before incurring the costs of pursuing a claim: but the costs of an application for such disputed pre-action disclosure may well be ordered against the claimant, even if such disclosure is ordered.
The reported case law on this issue relates mostly to cases involving no personal injury element, and so is not particularly helpful: but it does emphasise the requirement for the party seeking pre-action disclosure to rebut the presumption that it should not pay the costs of obtaining it.
In Bermuda International Securities Ltd v KPMG  EWCA Civ 269 the Court of Appeal exercised its discretion to reverse the presumption that a party seeking pre-action disclosure should pay the costs of making the application (although it had already been agreed that the costs of complying with the order should be paid by the party making application in any event).
In Re R (A Child)  EWHC (Fam), Sumner J exercised his discretion by making no order as to the costs a successful application for pre-action disclosure, of a child’s medical records in relation to a potential clinical negligence claim, on the basis that legitimate concerns had been raised in opposing the application.
In SES Contracting Ltd and Others v UK Coal plc  EWCA Civ 791, the Court of Appeal held that one would expect the court to order that the party producing documents by way of pre-action disclosure should bear the costs of the application only in the case where it was clearly unreasonable to oppose the application, or whether manner of the opposition was so unreasonable as to make it appropriate to require them to bear the whole of the costs: and held that a reasonable exercise of discretion was that there be no order as to costs, overturning a High Court of Judge’s original decision that the party unsuccessfully opposing an application for pre-action disclosure should pay all of the costs of the application.