A recent judgment has provided welcome confirmation of the
position that pre-action disclosure orders are not the norm in the
Commercial Court and pre-action disclosure applications should only
succeed if there are grounds for distinguishing a case from the
"usual run".
In Carillion Plc (in liquidation) v KPMG LLP & Anor
[2020] EWHC 1416 (Comm), the court dismissed an application for
pre-action disclosure under CPR 31.16. Carillion sought the
production of documents in certain categories contained on
KPMG's electronic audit files for three year end audits, which
KPMG had declined to disclose voluntarily.
The legal principles
CPR 31.16 sets out that the court can only make an order for
pre-action disclosure where:
