"76: In general, however, it should in my judgment be remembered that the extent of standard disclosure cannot easily be discerned without clarity as to the issues which would arise once pleadings in the prospective litigation had been formulated. This Court touched on the question in Bermuda International Securities -v- KPMG [2001] Lloyd's Rep. PN 392 397,Paragraph 26, when Waller LJ there said that 'The circumstances spelt out by the rules show that it will only be ordered where the Court could say that the documents asked for will be documents that will have to be produced at the standard disclosure stage. It follows from that that the Court must be clear what the issues in the litigation are likely to be, i.e. what case the claimant is likely to be making, and what defence is likely to be being run, so as to make sure the documents being asked for are ones which will adversely affect the case of one side or the other, or support the case of one side or the other.' 77: It also seems to me to follow that if there would be considerable doubt as to whether the disclosure stage would ever be reached, that is a matter which the Court can and should take into account as a matter of its discretion."
"81: It is plain not only that the test of 'desirable' is one that easily merges into an exercise of discretion, but that the test of 'dispose fairly' does so too. In the circumstances it seems to me that it is necessary not to confuse the jurisdictional and the discretionary aspects of the paragraph as a whole. In Bermuda International Securities, Waller LJ contemplated that Paragraph 3(d) may involve a two-stage process. I think that is correct. In my judgment, for jurisdictional purposes the Court is only permitted to consider the granting of pre-action disclosure where there is a real prospect in principle of such an order being fair to the parties if litigation is commenced, or of assisting the parties to avoid litigation, or of saving costs in any event. If there is such a real prospect, then the Court should go on to consider the question of discretion, which has to be considered on all the facts and not merely in principle but in detail. 82 Of course, since the questions of principle and of detail can merge into one another, it is not easy to keep the two stages of the process separate. Nor is it perhaps vital to do so provided however, that the Court is aware of a need for both stages to be carried out. The danger, however, is that a Court may be misled by the ease with which the jurisdictional threshold can be passed, into thinking that it has thereby decided the question of discretion, when in truth it has not. This is a real danger, because first, in very many if not most cases, it will be possible to make a case for achieving one or other of the three purposes, and secondly, each of the three possibilities is in itself inherently desirable."
"… discretion is not confined and will depend on all the facts of the case. Among the important considerations, however, as it seems to me, are: the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure."
"The more diffuse the allegations and the wider the disclosure sought, the more sceptical the Court is entitled to be". (b) As to the reality that applications of this sort inevitably involve at least some speculation, Langley J in XL London Marketssaid: "
"Unfortunately, and despite repeated requests, the proposed Claimants’ solicitors, Shoosmiths, have failed to disclose any documentation relevant to the claim, and as such it has remained impossible for the proposed Defendants to consider various issues, namely quantification of the claim, and liability"