Before I started fee earning myself I was always asked to prepare Pre-Action Disclosure applications for other fee earners. I cannot recall how many I had actually prepared.
I remember reading articles by Defendant firms that they were the cashcows of Claimant personal injury firms because, more often than not, costs were awarded in favour of the application (despite the fact that the presumption is that the Applicant pays the Respondents costs of the application and their compliance with the Order).
The courts became more stringent on these applications, which were often dealt with on a paper basis. Then the position on costs, following the introduction of the Fixed Costs Regime, was clarified with Sharp v Leeds City Council [2017] EWCA Civ 33 and the volume of applications dropped.
It means that new fee earners may not be familiar with Pre-Action Disclosure applications and may lack knowledge of the procedures for making or contesting these.
Pre-Action Disclosure – the clue is in the name
It may seem trivial, but the application is only valid before proceedings are initiated. CPR 31.16(1) makes it clear that such applications can only be made before proceedings are initiated. I once took over the conduct of a claim where a pre-action disclosure application was issued but then proceedings were issued before the application was listed for a hearing. The Defendant/Respondent was very clear in that they said the application no longer had any merit because it was now in breach of CPR 31.16(1) and the entire purpose was to obtain dislcosure before proceedigns were issued.
I cannot recall whether the application was withdrawn (which would have been the correct thing to do) or whether it proceeded and was dismissed. Nevertheless, it was definitely not a successful application.
QOCS does not apply to PAD applications
It is quite common for novice practitioners to not realise that QOCS does not apply to PAD applications, but it is made clear in CPR 44.
Qualified one-way costs shifting: scope and interpretation
44.13
(1) This Section applies to proceedings which include a claim for damages –
(a) for personal injuries;
(b) under the Fatal Accidents Act 1976; or
(c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934,
but does not apply to applications pursuant to section 33 of the Senior Courts Act 1981 or section 52 of the County Courts Act 1984(applications for pre-action disclosure), or where rule 44.17 applies.
(2) In this Section, ‘claimant’ means a person bringing a claim to which this Section applies or an estate on behalf of which such a claim is brought, and includes a person making a counterclaim or an additional claim.
So, an application cannot be made with the Claimant enjoying the security blanket. Given the position on costs, the Claimant must give appropriate consideration to this course of action before embarkation.
Fixed costs apply to Pre-Action Disclosure applications (where fixed costs apply)
As mentioned in the introduction, the Court of Appeal (in the case of Sharp) determined that the fixed costs regime applies from the start of the claim, which is when a claim notification form is sent. So, if the case is subject to the fixed costs regime, then CPR 45.29H (or the equivalent) applies.
So this means that in many cases, it is ‘no QOCS, fixed costs’, which many will find to be a deterrent. However, a Claimant may only be able to adequately assess their prosepcts if they have sight of pre-action disclosure or a particular document.
The criteria for the application
This may also seem to be teaching readers to such eggs, but sometimes reliance on precedents can lead to a failure to address a particular point, which could make the application defective:-
- It must be supported by evidence (CPR 31.16(2))
- The Applicant and Respondent must be likely parties to the subsequent proceedings (CPR 31.16(3)(a)-(b))
- The documents sought in the application must be documents that would fall within the definition of standard disclosure as per CPR 31.6 had it been issued (CPR 31.16(3)(c)).
- The disclosure/documentation is desirable to either (i) dispose fairly of the anticipated proceedings (ii) assist the dispute to be resolved without proceedings or will save costs (CPR 31.16(3)(d)).
It may seem silly, but I have seen some applications with no evidence at all. Obviously, a witness statement can be evidence, but when it does not cover the elements, it can lead to the application failing.
Explain why the documents will assist in disposing fo the claim
In many cases, the application seeks for an Order without a hearing. In those circumstances, you will need to make your submissions within the application (contrary to what would normally happen, as statements are to adduce facts). It is quite often that an application statement will request documents, but not explain why.
For example, if you are requesting a document to establish pre-existing knowledge of a defect, explain that. Explain how the adverse or supportive evidence will allow the Applicant to ascertain their prospects of success.
Pre-Action Disclosure is not appropriate for non-party disclosure
Occasionally I see applications made against hospitals, non-Defendant employers and other non-parties for disclosure, but pursued under CPR 31.16. This is not correct. Such applications are made under CPR 31.17. They used to be called Norwich Pharmacal Orders prior to CPR. They have their own rules but costs are also subject to CPR 46.1.
Make sure if you are making a PAD application; it is actually a PAD application rather than a Third Party Disclosure Order.
The rebuttable presumption regarding costs
Years ago I overheard two lawyers discuss a telephone call one of them just had with the Defendant’s Solicitors. The one lawyer who had the call said “he tried to tell me that we need to pay their costs, not the other way around”. The other lawyer laughed and replied by saying “haven’t they read CPR?”.
Sadly, they were both wrong and the Defendant was correct:-
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.
It is not enough to say “we need those documents”. The applicant must establish that the Respondent had refused to provide these documents and that it was unreasonable for them to do so.
For example, the court might be sympathetic to an applicant if there has been no response or involvement from the respondent. However, the Court is unlikely to be sympathetic if the Respondent can prove they never received the Applicant’s correspondence or if they have been complying with requests, and the Applicant seeks documents that the Respondent was not informed about or that were requested at the last moment.
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.