Case Update: Smith v Secretary of State for the Environment and Climate Change [2013] EWCA Cv 1585

Guidance on applications for pre-action disclosure

The Court of Appeal has provided guidance on the approach that should be taken to applications for pre-action disclosure in the case of Smith v Secretary of State for the Environment and Climate Change [2013] EWCA Cv 1585.


The Claimant, Mr Smith aged 65, had worked for the National Coal Board (the Defendant’s statutory predecessor) between 1964 and 1994. He brought Proceedings against the Defendant arguing that adequate steps had not been taken to protect his hearing during the course of his employment and consequently he suffered with hearing loss as a result. The Claimant made an action for pre-action disclosure of certain documents from the Defendant pursuant to CPR 31.16. The application was allowed by DJ Buchan but the decision was overturned on appeal by HHJ Langan QC. He relied on the authority of Kneale v Barclays Bank Plc [2010] EWHC 1900 (Comm) finding that as the Claimant had not provided any medical evidence in support of his claim, he had not established that his case was more than a “mere punt”. The Claimant appealed this.

Decision on Appeal

The Claimant’s appeal was allowed, the Court of Appeal confirmed that there was no jurisdictional threshold within CPR r31.16(3)(a)(b) requiring the applicant to show that its case had some level of “arguability”. On the facts the District Judge had been right to have granted the application and made an order for disclosure.

Alexandra Banks

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