Case Alert - [2017] EWHC 2965 (Ch)
Judge confirms English courts have jurisdiction to permit service out of the jurisdiction of an application for pre-action disclosure
One of the issues raised in this case was whether the English courts have jurisdiction to give leave to serve an application for pre-action disclosure out of the jurisdiction (there is some textbook commentary to suggest it does not). The judge held as follows:
(1) In relation to service, CPR r6.2(c) defines a "claim" as including an application before action.
(2) For service out of the EU (here, service was to be in New York), the applicant must come within one of the gateways in PD6B para 3.1. The relevant gateway in this case was potentially para 20(a): "A claim is made (a) under an enactment which allows proceedings to be brought and those proceedings are not covered by any of the other grounds referred to in this paragraph".
The enactment relied upon was section 33 of the Senior Courts Act 1981 ("SCA 1981"), which confers on the High Court the power to order disclosure and production of documents in a person's possession if that person appears likely to be a party to subsequent proceedings.
(3) The respondent argued that an application for disclosure was not itself a form of proceedings. It sought to rely on the case of AES LLP v JSC (see Weekly Update 20/11) in which the Court of Appeal commented (obiter) that there was a serious argument that section 37 of the SCA 1981 was not an enactment which allows proceedings to be brought, but which provided for a particular remedy within proceedings whose basis had to be found elsewhere. The judge held that "AES is not authority for a proposition that, say, an application for an injunction before the commencement of action would not itself be a "proceeding", still less is it authority for the proposition that an application for pre-action disclosure is not a "proceeding"". There is no requirement in an order for pre-action disclosure that the applicant subsequently commence further proceedings.
(4) The judge concluded that pre-action disclosure is a "proceeding" and that section 33 of the SCA 1981 is an enactment which allows proceedings for pre-action disclosure to be brought.
Accordingly, the court had power to order service of the application out of the jurisdiction.
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