Roche v Newbury Homes Ltd [2009] EW Misc 3 (EWCC)

Posted on Tuesday, February 10th, 2009

The Claimant had issued an application for pre-action disclosure. The issue was whether the Claimant’s CFA allowed the recovery of pre-action disclosure application costs.

It was argued by the Defendant that there was no provision in the Claimant’s CFA for the recovery of pre-action disclosure costs and in addition, it was argued that the application was a separate cause of action.

The Claimant argued that the documents applied for were specific to the claim and that the application was “so intrinsically linked to the main claim” that it was impossible to separate the two.

Deputy District Judge Smith rejected the Claimant’s arguments and stated that the Claimant’s application was for pre-action disclosure which could not be, by definition, the action because what was sought preceded and pre-dated the issue of any substantive claim. In addition, Deputy District Judge Smith referred to the CFA and what was covered by the agreement and stated that preliminary issues or pre-action matters were not part of the substantive claim and therefore not covered by the CFA.

The Claimant was therefore ordered to pay the Defendant’s costs of the pre-action disclosure application.

Please note that this was a County Court decision and therefore not strictly binding.

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