I had drafted many pre-action and third party disclosure applications before coming a fee earner myself. I was a paralegal assistant to one of the senior Solicitors of the firm and it very much gave me the opportunity to learn every aspect of litigation. The Solicitor undertook a wide range of personal injury cases, mostly multi track but fast track cases too.
Pre-action disclosure applications speak for themselves but there were a number different circumstances where a third party disclosure application was needed. For example, we needed documents held by the police who would not release the same under a SAR. Records of a patient who injured our client but could not consent to the release of their records due to having no capacity. A third party company who may have evidence that supported the Claimant’s claim against the Defendant but were not a likely party to the claim.
It goes without saying that I became quite familiar with the procedure for these applications.
You cannot (be expected to) know everything
I do not recall precisely when but in the first year of being a litigation fee earner I overheard two very experienced fee earners discussing a case (the joys of open plan office space). One fee earner had explained how she just got off the phone with the Defendant Solicitor regarding a pre-action disclosure application. The Defendant’s Solicitor had said something on the lines of “well the starting point is that your client will pay my client’s cost of the application anyway”.
The fee earner said to the other, with a smug tone ‘doesn’t say that in CPR does it?’. I happened to know that the Defendant’s Solicitor was right. Like with most things, they simply were not aware of it and a discreet highlighting of that fact by me meant that going forward, they knew too.
CPR 46.1
It is reasonable to presume that if one is seeking to obtain something, in this case a document, that the cost of and associated with the making of the application should be borne by the party who has caused the applicant to make said application.
Part 46.1 says otherwise:-
Pre-commencement disclosure and orders for disclosure against a person who is not a party
46.1
(1) This paragraph applies where a person applies –
(a) for an order under –
(i) section 33 of the Senior Courts Act 1981; or
(ii) section 52 of the County Courts Act 1984,
(which give the court powers exercisable before commencement of proceedings); or
(b) for an order under –
(i) section 34 of the Senior Courts Act 1981; or
(ii) section 53 of the County Courts Act 1984,
(which give the court power to make an order against a non-party for disclosure of documents, inspection of property etc.).
(2) The general rule is that the court will award the person against whom the order is sought that person’s costs –
(a) of the application; and
(b) of 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.
Subsection 2 (in bold) states that when you are making an pre-action or third party application, the applicant will be responsible for the respondent’s cost of complying with the application as well as the cost of the application itself.
This includes the cost of acquiring the document, making copies, appropriate redaction and cost of providing it to the applicant.
It is only when the Court considers subsection 3 (in italics and underlined) that it will consider reversing the presumption to make the respondent liable for the applicant’s costs of and associated with the making of the application. It is at the Court’s discretion. Quite simply, there is no guarantee.
Was it reasonable for the respondent to oppose the application?
There will be circumstances where the respondent has reasonably opposed an application. For example, where the records concern a patient without capacity. The hospital can reasonably object to what extent and therefore an applicant may be unable to trigger CPR 46.1(3).
A hospital who was obligated to provide an applicant with a copy of its records upon request under GDPR/Data Protection Act 2018 and fails to do so after the prescribe time (and sufficient notice of an application) may have little grounds to object.
Where a respondent does not expressly object (or fails to attend a hearing to object) may find the applicant to be in a stronger position to trigger CPR 46.1(3).
Have the parties complied with the Pre-Action Protocol?
CPR 31.16 does not specifically require party to have complied with the pre-action protocol but it would most certainly be a factor in granting the application. If an applicant has not complied with the pre-action protocol and managed to convince the Court to grant the application, then the failure to comply will most likely lead to the Court not exercising CPR 46.1(3) to rebut the presumption that the respondent should have its costs paid.
It is also about whether or not the respondent has complied. For example, if the respondent has complied and has done everything possible to assist the applicant, then the Court may not be so willing to rebut the presumption in favour of the applicant.
What can an application do to increase prospect of rebutting the presumption of costs
An applicant would do well to ensure that any application makes it clear (with evidence in support) that:-
- reasonable steps were taken to obtain the disclosure from the respondent
- the respondent has been unreasonable in its refusal/objection
- the applicant has complied with the pre-action protocol
Avoiding a ‘no order as to costs’
An applicant may displace the presumption of paying the respondent’s costs, but that doesn’t automatically guarantee a positive costs Order in the applicant’s favour.
The Court of Appeal, in SES Contracting Ltd and Others v UK Coal plc [2007] EWCA Civ 791, overturned a High Court’s decision to Order requiring the respondent to pay the Applicant’s costs in full and replaced it with an ‘No Order as to Costs’.
The Court of Appeal decided that as the starting point was a respondent’s costs to be paid and was entitled to contest an application without the risk of costs. Even if there is criticism in how a respondent contests, any reasonable grounds to oppose the application will not necessarily lead to an application having its costs paid.
Pre-action disclosure applications are more likely to be cases where there is no good reason for the Defendant to contest, compared with third party disclosure applications.
Applicants should make sure it is spelled out to the Court. It is not enough to simply say the application had to be made. Look at what it says in CPR 46(3)(a) & (b) and ensure you address it in sufficient detail.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.