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In this judgment, concerning an application under CPR Part 31.16 for pre-action disclosure, Marcus Smith J considered the two part test for such an application, and determined that application did not meet the threshold necessary to give rise to a discretion to make the order.

The Applicants applied for pre-action disclosure from a number of potential defendants against whom it considered it might have claims in connection with the production of commentaries on horse races taking place at race courses in which the Second Applicant, Arena, had an interest. The First Applicant, AtTheRaces, had an interest in the audio-visual coverage of the races taking place on Arena’s course. The Applicants claimed they required pre-action disclosure to enable them to plead a focused case against the various Respondents, and in particular to determine which causes of action it had against which potential defendants.

After the Applicants issued their application the Respondents provided information, in correspondence and in their evidence in response.  The Respondents asserted they had provided all the information the Applicants were seeking to obtain through their application for disclosure, and that therefore the application must fail. The Applicants said that additional disclosure was still required.

Marcus Smith J reviewed the case law relating to the test for granting pre-action disclosure, distinguishing the threshold conditions which must be met and the discretionary element which arises if those conditions are met. He held that, whatever might have been the position when the application was first made, as a result of the information supplied by the Respondents, the threshold was not met by the time of the hearing.

The full judgment can be read here.

Ian Mill QC and Tom Cleaver acted for the Applicants.

Tom Weisselberg QC and Victoria Windle acted for the First to Fifth Respondents.

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