Smith v Secretary of State for Energy And Climate Change [2013] EWCA Civ 1585

[2013] EWCA Civ 1585Case No B2/2013/0054
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM Leeds County Court
HHJ Langan QC
2LS50469
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/12/2013
Before
LORD JUSTICE LONGMORELORD JUSTICE UNDERHILLLORD JUSTICE FLOYD
Between
HENRY ALAN SMITHAppellantSECRETARY OF STATE FOR ENERGY AND CLIMATE CHANGERespondent
Theo Huckle QC and Cathrine Grubb (instructed by Messrs RH Solicitors) for AppellantAndrew Kinnier (instructed by Messrs Nabarro) for RespondentHearing Hearing date: 11th October 2013
JudgmentLord Justice Underhill :INTRODUCTION
[1]The Appellant is aged 65. From 1964 to 1994 he was employed by the National Coal Board (latterly the British Coal Corporation). Until 1979 he worked underground, for one year at Markham colliery and thereafter at Rossington. From 1979 to 1984 he had a job which involved him going underground regularly. He believes that the Board did not take adequate steps to protect him from the damaging effects of the noisy environment underground. In particular, he says that he was never provided with any hearing protection. He says that he has suffered hearing loss as a result. (He acknowledges that a man of his age is likely to suffer some hearing loss in any event, but he believes that his loss is worse than would otherwise be expected: I use the phrase “hearing loss” in that sense.)[2]On 2 September 2011 solicitors acting for the Appellant on a CFA basis wrote a letter of claim, in accordance with the Pre-Action Protocol for Disease and Illness Claims. The letter was addressed to the Respondent, the Secretary of State for Energy and Climate Change, who is the statutory successor to the relevant liabilities of the Board and the Corporation. The letter of claim included a request for disclosure of the Appellant’s work medical records and personnel records, for which provision is expressly made at para. 4 of the Protocol; and these were duly provided. However, it also made a much more extensive request for disclosure of documents which might help to establish the levels of noise experienced in the various pits at which the Appellant had worked underground and his employers’ knowledge of those levels and the consequent risks. That request was refused.[3]On 8 February 2012 the Appellant applied to the Leeds County Court for an order for pre-action disclosure in accordance with section 52 of the County Courts Act 1984 and CPR rule 31.16. On 1 June District Judge Buchan ordered disclosure of several, though not all, of the categories of documents sought in the letter of claim. The formal order as issued is defective since it says simply that the “parties [should] lodge documents agreed”. It is, however, common ground that the parties had agreed on the categories of document to be disclosed if the issue of principle was decided in the Appellant’s favour. The categories were as follows:
“(i) Documentation relating to noise tests carried out on behalf of the employers including documents, reports and memoranda prepared in consideration of the need for tests and the reports that were prepared subsequently as a result. (ii) Memoranda and other documentation which has come into existence as a result of the defendant’s consideration of the problems caused by noise and their decision to supply ear muffs, ear plugs and other similar ear protection, including copies of all order forms, requisition slips and documents relating to the supply and use of ear protection to the claimant. (ii) Copies of all posters, warning notices and instructions issued by the employers to the claimant with regard to the hazard of noise. (iv) Copies of all safety committee meeting minutes, safety officers reports and any notes relating to complaints having been made or steps being taken with regard to their preventing their employees being exposed to noise.”
Those documents were to cover only the period during which the Appellant worked at Markham and Rossington – that is, from 1964 to 1979.[4]The Respondent appealed. The appeal was heard by His Honour Judge Langan QC in the Leeds County Court on 15 November 2012. By a reserved judgment dated 30 November he allowed the appeal and dismissed the application. In doing so he relied on the decision of Flaux J in Kneale v Barclays Bank [2010] CLTC 233 ([2010] EWHC 1900 (Comm)): I will have to say more about that decision in due course.[5]Lewison LJ gave permission to appeal to this Court. He found that the criteria for a second appeal were satisfied because:
“… there is some confusion on the authorities what is the correct threshold test for the claimant to satisfy before the court will consider making an order for pre-action disclosure. In substance the appeal is an appeal against the decision of Flaux J in Kneale v Barclays Bank. I am satisfied that it raises an important point of principle.”
[6]Before us the Appellant has been represented by Mr Theo Huckle QC, leading Ms Cathrine Grubb. The Respondent has been represented by Mr Andrew Kinnier. None of the counsel who appeared before us had appeared below.

THE STATUTE AND THE RULES

[7]Section 52 (2) of the 1984 Act (as amended) reads as follows:
“On the application, in accordance with rules of court, of a person who appears to a county court to be likely to be a party to subsequent proceedings in that court the county court shall, in such circumstances as may be prescribed, have power to order a person who appears to the court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim— (a) to disclose whether those documents are in his possession, custody or power; and (b) to produce such of those documents as are in his possession, custody or power to the applicant or on such conditions as may be specified in the order,— (i) to the applicant's legal advisers; or (ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.”
Section 33 (2) of the Senior Courts Act 1981 (as amended) makes substantially identical provision for proceedings in the High Court. (i) to the applicant's legal advisers; or (ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.”[8]As originally enacted, both section 52 (2) of the 1984 Act and section 33 (2) of the 1981 Act (and their predecessor provisions in the County Courts Act 1959 and the Administration of Justice Act 1981) were differently worded, in that after the phrase “likely to be a party to subsequent proceedings” there appeared the words “in which a claim in respect of personal injuries to a person or in respect of a person’s death is likely to be made”. Those words were removed by amendments introduced in 1998 at the same time as the introduction of the CPR regime.[9]The relevant rule is CPR 31.16, which reads (so far as material) as follows:
“(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started. (2) The application must be supported by evidence. (3) The court may make an order under this rule only where- (a) the respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to – (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs. (4)-(5) ...”
That rule of course reflects the provisions of the two statutes. In particular, heads (a) and (b) under para. (3) directly reproduce the statutory language. (a) the respondent is likely to be a party to subsequent proceedings; (b) the applicant is also likely to be a party to those proceedings; (c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and (d) disclosure before proceedings have started is desirable in order to – (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.

THE AUTHORITIES: BLACK v SUMITOMO AND KNEALE v BARCLAYS BANK

[10]Authoritative guidance on the meaning and effect of CPR 31.16 is to be found in the judgment of Rix LJ in this Court in Black v Sumitomo Corporation [2002] 1 WLR 1562 ([2001] EWCA Civ 1819) – though, as will appear, it has been argued that he leaves an important question unanswered. The relevant parts of Rix LJ’s judgment for present purposes can be summarised as follows:(1) He starts his general discussion by summarising, at paras. 49-50 of his judgment, the recommendations of Lord Woolf’s “Access to Justice” report which lie behind CPR 31.16. Paras. 51-58 are concerned with a question which is irrelevant to the issue before us.(2) At paras. 59-68 he reviews the authorities on the provisions as they stood prior to 1998 (see para. 8 above). Most of this passage is immaterial for present purposes, but I should set out para. 68, which reads:
“What … these authorities on the unamended section in my judgment reveal, and usefully so, is as follows. First, that at any rate in its origin the power to grant pre-trial disclosure was not intended to assist only those who could already plead a cause of action to improve their pleadings, but also those who needed disclosure as a vital step in deciding whether to litigate at all or as a vital ingredient in the pleading of their case. Secondly, however, that (as what I would call a matter of discretion) it was highly relevant in those cases that the injury was clear and called for examination of the documents in question, the disclosure requested was narrowly focused and bore directly on the injury complained of and responsibility for it, and the documents would be decisive on the conduct or even the existence of the litigation. Thirdly, that on the question of discretion, it was material that a prospective claimant in need of legal aid might be unable even to commence proceedings without the help of pre-action disclosure.” (3) Rix LJ turns to the current regime at para. 69 of his judgment. He says: “I now turn to the amended section 33 (2) and the current rule of court, and will consider first of all the jurisdictional thresholds which have to be passed (“only where”) in order to vest a court with discretion to make an order for pre-trial disclosure.”
It is worth spelling out that that way of putting it recognises that the structure of CPR 31.16 formally requires a two-stage approach. The first stage is to establish whether the jurisdictional thresholds prescribed by heads (a)-(d) are satisfied. If they are, the Court proceeds as a second stage to consider whether, as a matter of discretion, an order for disclosure should be made. (4) He then proceeds to consider heads (a)-(d) in turn. He takes (a) and (b) together. The passage begins as follows:
“70. The application has to be made by “a person … likely to be a party to subsequent proceedings” against “a person … likely to be a party to the proceedings” (section 33 (2)) and those requirements are reflected (in reverse order) in CPR r 31.16 (3) (a) and (b). There is no longer any statutory requirement that ‘a claim … is likely to be made’.” 71. Of course, in one sense it might be said that a person is hardly likely to be a party to subsequent proceedings whether as a claimant or otherwise unless some form of proceedings is itself likely to be issued. Two questions, however, arise. One is whether the statute requires that it be likely that proceedings are issued, or only that the persons concerned are likely to be parties if subsequent proceedings are issued. The other is whether “likely” means “more probably than not” or “may well”
. As to the first question, in my judgment the amended statute means no more than that the persons concerned are likely to be parties in proceedings if those proceedings are issued. That was what Lord Woolf had in mind when he wrote of the requirement that “there is a likelihood that the respondent would indeed be a defendant if proceedings were initiated” (in Section III, para 50, of his final “Access to Justice” report, ...). The omission of any language which expressly requires that the initiation of proceedings itself be likely, which could have been included in the amended section, appears to me to reflect the difficulties which the earlier authorities had explored in the sort of circumstances found in Dunning v United Liverpool Hospitals' Board of Governors [1973] 1 WLR 586. What the current language of the section appears to me to emphasise, as does the rule of court, is that the parties concerned in an application are parties who would be likely to be involved if proceedings ensued. The concern is that pre-action disclosure would be sought against a stranger to any possible proceedings, or by a party who would himself be unlikely to be involved. If the statute and rule are understood in this sense, then all difficulties, which might arise where the issue of proceedings might depend crucially on the nature of the disclosure sought and where it is impossible at the time of making the application to say whether the disclosure would critically support or undermine the prospective claim, disappear. (5) At para. 72 he addresses the second of the two questions adumbrated at the start of para. 71, namely what is meant by “likely”. He points out that that question loses most of its significance by reason of his answer to the first question; but he says that if necessary he would read it as meaning “may well”, i.e. as opposed to “more likely than not”. At para. 73 he says:
“… In my view, apart from the two issues of principle which present themselves and which I have sought to answer in this section of my judgment, the word itself presents no difficulties. Temptations to gloss the statutory language should be resisted. The jurisdictional threshold is not, I think, intended to be a high one. The real question is likely to be one of discretion, and answering the jurisdictional question in the affirmative is unlikely in itself to give the judge much of a steer as to the correct exercise of his power.” (7) What Rix LJ says about head (c) is immaterial for present purposes. Nor is head (d) directly material; but in his very full analysis in paras. 79-83 he teases out the difficulties caused by what is clearly framed as a jurisdictional requirement being dependent on the exercise of a judgment about “desirability” and in that context notes that it is important to separate out the truly jurisdictional condition, which may be relatively easily satisfied, from the subsequent discretionary exercise: see para. 82 (at p. 1586 F-G). (8) Having found that the Court had jurisdiction to consider the application Rix LJ proceeds finally at paras. 87-101 (pp. 1587-1592) to consider whether disclosure should be ordered in the exercise of its discretion. He holds that the application should be dismissed, essentially because the prospective claim was “speculative in the extreme” and the request for disclosure very wide-ranging. It is worth noting that he does not regard the fact that a claim might be characterised as “somewhat speculative” as necessarily fatal to an order for disclosure. Rather, it is a factor going into the discretionary balance. He says, at para. 95 (p. 1590): “In my judgment, the more focused the complaint and the more limited the disclosure sought in that connection, the easier it is for the court to exercise its discretion in favour of pre-action disclosure, even where the complaint might seem somewhat speculative or the request might be argued to constitute a mere fishing exercise. In appropriate circumstances, where the jurisdictional thresholds have been crossed, the court might be entitled to take the view that transparency was what the interests of justice and proportionality most required. The more diffuse the allegations, however, and the wider the disclosure sought, the more sceptical the court is entitled to be about the merit of the exercise.”
[11]Apart from Black v Sumitomo the other decision to which I should refer at this stage is Kneale v Barclays Bank Plc. In that case the applicant was facing a demand for large sums on his credit card account, though proceedings had not yet been brought. He asserted that the claim was unenforceable for non-compliance with the applicable statutory requirements. He advanced no positive case either that he had not signed a written agreement or that any agreement which he had signed was non-compliant; but he nevertheless sought disclosure of the original agreement under CPR 31.16. The bank had produced a standard form in blank of the agreement which it said that the applicant would have been required to sign but it resisted the application for a copy of the original on the basis that he had failed to establish that he had any arguable case that the agreement was unenforceable. Importantly, that submission was advanced as an argument going to jurisdiction.[12]Flaux J starts his analysis, at paras 19-20, by emphasising, by reference to the judgment of Rix LJ in Black v Sumitomo, the distinction between questions going to jurisdiction and questions of discretion. He then says, at para. 21, under the heading “Jurisdiction: Arguable Case”:
“The courts have tended to consider sub-rules (3) (a) and (b) together, concerned as they both are with the likelihood of the parties to the pre-action disclosure application being party to any subsequent proceedings. The Court of Appeal in Black v Sumitomo decided that these provisions do not require it to be likely that proceedings will be issued, but only that, if subsequent proceedings are issued, it is likely that the applicant and the respondent will be parties to those proceedings: see per Rix LJ at paragraph 71.

(b) ”

He proceeds to discuss that question in detail, considering in particular a submission by the bank that the test of arguability was the same as that under CPR 24, namely whether the applicant’s potential case had “a real prospect of success”. He considers Black v Sumitomo itself, a later decision of this Court in Rose v Lynx Express [2004] 1 BCLC 455 ([2004] EWCA Civ 447) and two first-instance decisions – BSW Ltd v Balltec Ltd [2006] EWHC 822 (Ch) (Patten J) and Pineway Ltd v London Mining Ltd [2010] EWHC 1143 (Comm) (David Steel J). It appears (see paras. 35 and 36) that counsel for both parties proceeded on the basis that there was an “arguable case” jurisdictional threshold: the issue was how the height of that threshold should be characterised.[13]Flaux J expresses his conclusion as follows:
“37. If I had to decide which test was the correct one for the "arguable case" jurisdictional threshold, I would conclude that it was the lower one suggested by Black v Sumitomo and by BSW v Balltec. I have reached this conclusion not only on the basis of the authorities that led Patten J to the same conclusion in BSW v Balltec, but on the basis that, in principle, at the pre-action stage where the whole purpose of the application is to ascertain whether to bring a claim or not, it cannot be right that the applicant has to establish a case which is sufficiently arguable to have a "real prospect of success" in the sense which that phrase has under the CPR. It seems to me that Rix LJ was implicitly rejecting that approach in paragraph 72 of his judgment in Black v Sumitomo. 38. Having said that, it seems to me that because CPR 31.16 (3) (a) and (b) do require the applicant to show that proceedings may well ensue (per Rix LJ at paragraph 72 of Black v Sumitomo) the applicant has to show some sort of prima facie case which is more than a merely speculative ‘punt’. …”
Flaux J went on to dismiss the application on the basis that the claim in support of which disclosure was sought was indeed merely speculative.

THE DECISION OF THE DISTRICT JUDGE

[14]The application first came before the District Judge on 3 April 2012. At that stage the Appellant’s evidence in support consisted of a statement from his solicitors attached to the application notice which said nothing about his work history or about his alleged hearing loss. It was argued by the Respondent that that was not enough; in particular it was said that the claim should be regarded as wholly speculative unless and until an audiogram showing the extent of the hearing loss was produced. It was the Respondent’s view – though it is unclear how explicitly this was articulated at that stage – that the Appellant’s solicitors and ATE insurers were bound in practice to have obtained at least a “screening audiogram” before agreeing to take his case.[15]The District Judge rejected the argument “that there has to be an audiogram pre-issue”; but he accepted that the Appellant’s evidence was inadequate and that he should provide “a bit more information” of, it seems, two kinds. First, he said that he should provide details of where and when he had worked underground. Secondly, he needed to provide “something from his doctor”, even if not an audiogram, establishing that he did indeed suffer from hearing loss. He adjourned the application for that information to be lodged.[16]In response to that ruling the Appellant lodged a witness statement from his solicitor, Ms Plane. This summarised his history of working underground, identifying the sources of noise to which he was exposed. As regards his claim to have suffered hearing loss, she did not exhibit any medical evidence, still less an audiogram. Instead, she said, at para. 6:
“The Claimant has to turn the TV up louder than normal and he struggles to hear when using the telephone. The Claimant has also noted that his hearing loss is more significant than other people his age. The Claimant has not attended his GP in relation to his symptoms, however this is not uncommon and the Court is referred to the authority of Furniss v Firth Brown Tools [2008] EWCA Civ 182.”
She submitted (at para. 22) that this evidence established that “the Claimant has hearing problems indicative of those who suffer with NIHL [i.e. noise-induced hearing loss] and certainly has hearing loss above and beyond those of a similar age”.[17]The Respondent lodged a solicitor’s witness statement in response which was largely argumentative. The essential point made, so far as concerns the issues before us, is encapsulated at para. 14:
“The Claimant has given some subjective information on the difficulties he has with his hearing, but he has produced no evidence whatsoever indicating he is actually suffering from deafness at all or that he is deafer than expected for a man of his age.”
In those circumstances, it was submitted, the claim should be characterised as purely speculative, with the result that the Court had no jurisdiction to make an[18]The application came back before the District Judge on 1 June 2012. His judgment was delivered ex tempore, and no doubt for that reason it is not perfectly expressed. I will not set it out verbatim. The essential points can be summarised as follows:(1) He did not accept that the decision of Flaux J in Kneale was applicable, apparently because it was not a personal injury case. (It is convenient to say at this stage that that was not a valid ground of distinction insofar as it decided questions about the meaning and effect of CPR 31.16.)(2) He decided, contrary to his view expressed at the earlier hearing, that nothing of substance could be achieved by insisting on a report from a GP, who would inevitably simply be feeding back the Appellant’s own account of his symptoms. In those circumstances it was not a prerequisite for an order that the Appellant produce evidence of his (allegedly noise-induced) hearing loss beyond what was contained in Ms Plane’s statement.(3) He believed that he should exercise his discretion in favour of ordering pre-action disclosure. He did not believe that the disclosure sought would be “excessively onerous”.

THE JUDGMENT OF JUDGE LANGAN

[19]The Respondent appealed against the decision of the District

Judge on three grounds, as follows:

“(1) The judge wrongly concluded that the requirements of CPR 31.16 (3) (a) and (b) were satisfied. The respondent had not shown that he and the appellant were ‘likely to be’ parties to substantive proceedings. (2) The judge’s consideration of the criterion of desirability in CPR 31.16 (3) (d) was inappropriate and inadequate. (3) Even if the conditions for making an order for pre-action disclosure had all been met, the court should have exercised its discretion by refusing to make such an order.”
[20]The argument before Judge Langan broadly reflected that before the District Judge, save that Ms Catherine Brown of counsel, who appeared for the Respondent, contended that the Appellant needed to produce not simply a report from a GP and/or such audiometric screening results as might already exist but a report from an ENT consultant based on the results of audiometric testing.[21]Judge Langan’s judgment is clear and well-structured. He addressed the three grounds of appeal in turn. In short, he accepted the first ground, but he made it clear (at paras. 26-29) that if he had not done so he would not have accepted the other two grounds and would have dismissed the appeal. As regards the first ground, he held that he was bound by the decision in Kneale and accordingly that the Appellant had to show, in Flaux J’s, words, “some kind of prima facie case which is more than a merely speculative ‘punt’”. The issue for him was whether the Appellant had surmounted what he described as “this modest jurisdictional threshold”. He summarised the parties’ submissions on that issue as follows:
“[22] The focus of Ms Brown’s submissions was on the failure of the [Appellant] to produce a report from an ENT consultant. Among the essential elements of a successful claim would be (1) the fact of exposure to noise, (2) deafness, and (3) an expert opinion which attributed the hearing loss to the noise. In the absence of (3), causation would not be established. At the present stage, unless there was available some evidence of causation, the potential claim remained in the zone of speculation and could not accurately be characterised as amounting to a prima facie case. Realistically, such evidence could only take the form of the conventional report by an ENT consultant, who would have the benefit of audiometric test and would have examined the potential claimant. [23] Mr Edwards [for the Appellant], on the other hand, argued that, in the particular circumstances of this case, the foundations of jurisdiction were in place. The [Appellant] has said that he is suffering from hearing loss (and there is no reason to doubt this), he worked for many years in an industry which was notorious for noise and in no other industry, and there has been no suggestion of exposure to noise in any non-work environment. There may well be cases of alleged NIHL in which, in the absence of audiometric testing and a favourable report from an ENT consultant, a potential claim could be dismissed as merely speculative, but the present is not such a case.”
He continued:
“[24] The point is a short one, and none the easier for that. The arguments are, it seems to me, almost evenly balanced. With some hesitation, I have concluded that Ms Brown’s submission is to be preferred. The tipping point is, as I see the case, provided by the [Appellant’s] age and his own description of his symptoms. He is 64 years old. He says (through his solicitor) that he has to turn the television volume up “louder than normal” and that he has difficulties with the telephone. These are common complaints from people in their mid-sixties, including many people who have never had long exposure to excessive noise at work or elsewhere. It seems to me that, in absence of an opinion to the effect that the [Appellant’s] hearing loss is more probably noise-induced than constitutional, the factual foundation of his potential claim is so fragile that it has to be regarded as what Flaux J called a punt. I have not ignored the [Appellant’s] statement that his hearing is worse than that of other people of his age but I can take very little account of that because the [Appellant] is there, as it seems to me, venturing into the realm of expert opinion. Whether the [Appellant’s] hearing is indeed worse than that of the average 64-year old man must be a matter for an audiologist.”

THE APPEAL

[22]The only question of pure law raised on the appeal to this Court is whether Judge Langan was right to proceed on the basis that the Appellant was required to establish, as a matter of jurisdiction, that he had an “arguable” or “prima facie” case (whatever the precise height of the threshold). I do not believe that the answer to this issue disposes of the appeal, or even that it will normally be of much importance in practice. Nevertheless it needs to be decided, and it makes sense to take it first.[23]I accept Mr Huckle’s submission that there is no jurisdictional “arguability threshold”, and I think I can fairly say that Mr Kinnier was not by the end of his oral submissions seeking to persuade us that there was. The jurisdictional requirements for the making of an order under CPR 31.16 are expressly set out at heads (a)-(d) in para. (3) of the rule, and they say nothing about the applicant having to establish some minimum level of arguability. If such a requirement exists it can only be implicit, and I see no basis for making any such implication. If heads (a)-(b) required an applicant to show that it was likely that proceedings would be commenced I could see an argument that that necessarily involved showing that the putative proceedings had some chance of success (because people are not likely to start hopeless cases). But it is clear from Black v Sumitomo that there is no such requirement: all that has to be shown is that it is likely that the respondent would be a party to such proceedings if commenced (see para. 71 of Rix LJ’s judgment – para. 10 (4) above). I accept of course that it cannot have been the intention of the rule-maker that a party should be entitled to pre-action disclosure in circumstances where there was no prospect of his being able to establish a viable claim; but in such a case disclosure could and no doubt would be refused in the exercise of the discretion which arises at the second stage of the enquiry.[24]That seems to me not only to be the right approach on a straightforward reading of the rule but also to be more satisfactory in practice. If there were a jurisdictional requirement of a minimum level of arguability the question would necessarily arise of how the height of the threshold is to be described. But abstract arguments of that kind tend to be arid and unhelpful. It is inherently better that questions about the likelihood of the applicant being able in due course to establish a viable claim are considered as part of a flexible exercise of the court’s discretion in the context of the particular case.[25]Mr Huckle submitted that this issue had already been decided in Black v Sumitomo. He referred to the statement at para. 71 of Rix LJ’s judgment that “the amended statute means no more than that the persons concerned are likely to be parties in proceedings if those proceedings are issued”. I do not think that that is formally decisive in his favour, because Rix LJ was not addressing quite the same question as is before us. But I agree that his reasoning overall is hard to reconcile with the existence of an arguability threshold which goes to jurisdiction. His consideration of the merits or otherwise of the applicant’s potential claim occurs in the final section of his judgment, under the heading “Discretion” (see para. 10 (8) above). The whole thrust of paras. 71-73 is that so far as possible the issues arising in an application under CPR 31.16 should be dealt with at the discretionary stage: see in particular the final sentence of para. 73. The same emphasis is apparent in para. 68 (p. 1583) (see para. 10 (2) above).[26]We were not referred by either party to the only other decision of this Court in this field, Rose v Lynx Express, although, as noted above, it was considered by Flaux J in Kneale. In that case the Judge considering an application under CPR 31.16 had taken it on himself to decide, as a preliminary issue, one of the substantive questions in the case. At para. 4 of the judgment of the Court Peter Gibson LJ expressed doubts about whether that was the right course and after drawing attention to some of the difficulties about it, concluded:
“In our view it will normally be sufficient to found an application under CPR 31.16(3) for the substantive claim pursued in the proceedings to be properly arguable and to have a real prospect of success, and it will normally be appropriate to approach the conditions in CPR 31.16(3) on that basis.”
But those observations are not addressed to the question whether “arguability” is to be treated as going to jurisdiction.[27]For those reasons I believe, with respect, that Flaux J was wrong to proceed in Kneale on the basis that heads (a) and (b) under CPR 31.16 (3) prescribe any kind of jurisdictional threshold of arguability; and in following him Judge Langan was likewise wrong.[28]However, as I have already trailed, determining that question is by no means decisive of the appeal. Essentially the same questions as Judge Langan considered under the head of jurisdiction still fall to be considered in the exercise of the Court’s discretion under CPR 31.16. I would myself avoid the language of “arguability”, which is more apt to the case where proceedings have started and may strike rather the wrong note in the present context: after all, it could be said that one of the reasons for seeking pre-action disclosure may be to enable a claimant to find out whether he has an arguable case (cf. para. 68 of Rix LJ’s judgment in Black v Sumitomo (para. 10 (2) above)). I would prefer to ask whether the applicant has shown some reason to believe that he may have suffered a compensatable injury; and, if so, with what degree of likelihood (cf. Rix LJ’s observations quoted at para. 10 (8) above). But that is largely a matter of language. The point remains that if, in the present case, there was no reason to believe that the Appellant might have suffered noise-induced hearing loss then it would not be right to order pre-action disclosure; and even if he had got over that hurdle but the claim could nevertheless be characterised as “speculative” it might be wrong to require any disclosure which was onerous.[29]Mr Kinnier submitted that the District Judge exercised his discretion wrongly. He made essentially the same points as were made by Judge Langan at para. 24 of his judgment. He submitted that the evidence adduced by the Appellant that he had suffered a compensatable injury, which I have set out at para. 16 above, did not give any reason to believe that he had suffered hearing loss, let alone noise-induced hearing loss: it amounted to no more than his uncorroborated and subjective assertion that he had more difficulty in hearing the phone and the television than he used to and that his hearing loss appeared to be worse than that of his contemporaries. That was of no real value, and the possibility that he had a claim was indeed entirely speculative. However Mr Kinnier’s position as to the minimum evidence that would justify disclosure was not quite the same as that taken by Judge Langan, i.e. that there would have to be a report from an audiologist stating that the Appellant’s hearing was worse than would be expected in a man of his age. Rather, he returned to the stance that the Respondent had adopted at the start and said that the irreducible minimum necessary to show that the Appellant might have a claim was the evidence of the screening audiogram which, he said, was bound to have been obtained (see para. 14 above).[30]Mr Huckle submitted that the District Judge had come to a conclusion which was within the proper exercise of his discretion. The Appellant’s account of his difficulties with his hearing could not simply be discounted. It constituted sufficient reason to believe that he might be suffering hearing loss of a kind greater than expected of a man of his age; and when that was taken with his very long history of working underground – without, on his evidence, adequate precautions – his potential claim could not be characterised as merely speculative. It was necessary to bear in mind that the case of noise-induced hearing loss was different from that of an overt physical injury, in that it would not generally be possible to demonstrate without a full expert opinion that abnormal hearing loss had occurred and that it was noise-induced; but it would be contrary to the policy of the pre-action disclosure provisions to require an applicant at this stage to go to the expense of obtaining such an opinion. He pointed out that the District Judge had found that the disclosure sought was not “excessively onerous”; and that Judge Langan had amplified that finding at para. 28 of his judgment, where he said:
“The argument that compliance with an order for pre-action disclosure would be unduly burdensome for the appellant is, in my judgment, over-blown. It seems to me to ignore the fact that any search for documents would be limited to two workplaces, and also to ignore the likelihood that a search of records for those workplaces (if not undertaken already) will be relevant to other potential claims.”
[31]Mr Huckle acknowledged (as the Appellant’s solicitors had previously been too coy to do) that a screening audiogram had been carried out. But he asserted that it was privileged; and he also said that such audiograms are obtained without the involvement of any doctor and because of their rough-and-ready nature would not be a safe basis on which to reach a view, one way or the other, about whether an applicant had suffered hearing loss, let alone noise-induced hearing loss. The evidence put forward by Ms Plane sufficed.[32]I do not believe that the District Judge exercised his discretion wrongly. I acknowledge that the points made by Mr Kinnier, and Judge Langan, have some force. The evidence that the Appellant had suffered hearing loss was indeed very short on detail, and I would encourage those advising potential claimants in similar circumstances to provide the Court, if they can, with rather fuller evidence than was proffered in this case. Nevertheless I do not believe that the District Judge was obliged to ignore it unless it was supported by an audiogram or a medical opinion. People do not necessarily need a test or a doctor to tell them if their hearing has deteriorated. They can tell from the kind of problems – with hearing the television or using the telephone – that the Appellant reported, however briefly, in this case; and they can also, in a broad way, judge if those problems seem to be worse than those experienced by their contemporaries. Such evidence would not of course suffice at trial; but in my view it does afford sufficient reason to believe that the Appellant may indeed have suffered hearing loss, and that, if so, it may have been caused by the fact that he worked for many years in a very noisy environment. His evidence as to his working conditions underground goes indeed to both points: that is, it both renders the claim that he had suffered hearing loss more likely and affords some reason to believe that such loss may have been noise-induced. It remains necessary to bring into the equation the burden which giving disclosure would impose on the Respondent; but Mr Kinnier did not seek to challenge the assessment of both the District Judge and Judge Langan that the disclosure sought would not be too onerous.[33]In so far as that conclusion means that I am differing from Judge Langan I do so with the less reluctance both because he himself thought the point finely balanced and because he might not have been willing to overturn the decision of the District Judge if he had regarded the question as one of discretion rather than going to jurisdiction. As I have said, he rejected the Respondent’s challenges to the decision of the District Judge based on his assessment of the “desirability” of disclosure and on the exercise of his discretion – see paras. 19 and 20 above.[34]I am reinforced in my conclusion by the fact that it was not clear from the material before us what the real value would have been of either a GP’s opinion, as per the District Judge’s first thoughts, or the production of the screening audiogram, as per Mr Kinnier’s oral submission. I see force in the District Judge’s second thoughts, i.e. that without proper audiometric testing a GP could do little more than feed back what he or she was told by the Appellant. As for the screening audiogram, as I have already mentioned, we were told by Mr Huckle that this was of a very basic character and, although it was presumably of some value to solicitors and/or insurers, that it would not by itself be of much value to a court. On that basis Judge Langan’s view that only a report from an audiologist would suffice was arguably more coherent than Mr Kinnier’s half-way house; but to impose such a requirement would, as Mr Kinnier implicitly recognised, be hard to reconcile with the character of a pre-action disclosure application. I do not, however, put this at the centre of my reasoning since we had no evidence as to exactly what could or could not be established by different types of testing.[35]I should add that Mr Huckle drew our attention to the terms of paras. 6 and 7 of the Pre-Action Protocol for Disease and Illness Claims. Para. 7.3 requires the recipient of a pre-action protocol letter who does not admit the claim to enclose with his reasoned reply copies of documents “which would be likely to be ordered to be disclosed by the court, either on an application for pre-action disclosure, or on disclosure during proceedings” (see fourth bullet). That obligation arises even though the claimant is not obliged to provide medical evidence with the letter of claim: see para. 6.9. It was plain that, whatever the position on a pre-action disclosure application, the documents sought by the Appellant would be disclosable if proceedings were commenced; and he submitted that it would be anomalous if his failure to produce a medical report – or an audiogram – meant that the Appellant was refused disclosure under CPR 31.16 of documents to which he was entitled under the Protocol. However I do not think that reference to the Protocol can give a short-cut answer to the issue before us. Protocols do not have the status of rules and there is no obligation as such to comply with them; nor are they drafted with the precision of the rules themselves. If, applying CPR 31.16 according to its terms, the Court were to conclude that an applicant was not entitled to pre-action disclosure, it is inconceivable that the respondent would at some subsequent stage be held to have failed to comply with the Protocol, still less subjected to any sanction, by withholding the documents in question pre-action simply because they would have been disclosable if proceedings were commenced and thus on a literal reading fell within the terms of para. 7.3.[36]In his oral submissions Mr Kinnier contended that if the Respondent was going to have to make such substantial pre-action disclosure the Appellant should in turn be required to release at least such audiogram results as he had already obtained. The point is distinct from the question whether without production of the audiogram the Appellant could show sufficient reason to believe that he might have suffered a compensatable injury: rather, it is based on considerations of fairness and mutuality. I have in principle some sympathy with it. The Protocol, reflecting the over-riding objective, expressly enjoins openness between parties to a potential claim – see in particular para. 3 – and I have no difficulty in accepting that it may be a relevant consideration in any exercise of the Court’s discretion under CPR 31.16 that the applicant has himself been unco-operative in the supply of documents or other information. But the point was not put this way below, and neither the District Judge nor Judge Langan considered whether there were legitimate reasons, whether by reference to privilege or otherwise, for the Appellant’s refusal to disclose his screening audiogram. This is not territory on which we can enter at this stage.

DISPOSAL

[37]For the reasons which I have given I would allow the appeal and restore the order of the District Judge – save that I would invite the parties to incorporate in the draft submitted to the Court the details which I have set out at para. 3 above and to provide for an agreed timetable for the disclosure. Lord Justice Floyd:[38]I agree.

Lord Justice Longmore:

[39]I am glad to agree also that the District Judge's order should be restored. Applications for pre-action disclosure are not meant to be a mini-trial of the action and should be disposed of swiftly and economically. Elaborate arguments are to be discouraged; I hope that my Lord's judgment will mean that in the future these applications can be disposed of without resort to the appellate process.

order

reliance was placed on para. 38 of the judgment of Flaux J in Kneale.

Cited in 10 later judgments

and 1 more case