Lucie Briggs successfully acted for the respondent Harron Homes Ltd in a dispute with Taylor Wimpey UK Ltd (“TW”) which had sought an order under CPR 31.16 for pre-action disclosure against Harron Homes Ltd (“HH”).
The underlying dispute between the parties concerned responsibility for drainage issues on a large plot of land pursuant to a “Collaboration Agreement”.
HH referred the dispute to Expert determination pursuant to clause 24 of the Collaboration Agreement. TW wanted to commence TCC proceedings having raised a jurisdictional objection to expert determination.
In its application, TW sought disclosure from the respondent of documents including design drawings, design calculations, as-built drawings of the drainage and correspondence concerning the designed allowances and the adoption of the drainage by the statutory undertaker.
Mr Justice Fraser held that, although the jurisdictional threshold for ordering pre-action disclosure was crossed, it would not be appropriate for the court to exercise its discretion to make an order because HH had referred the dispute to expert determination. Mr Justice Fraser stated that the court in all cases would be astute to prevent pre-action disclosure from being used to frustrate, impede or interfere with contractually agreed ADR mechanisms and that granting the instant application would run the very real risk of doing that. He held that disclosure of documents necessary or desirable for the proper conduct of the expert-determination reference was a matter for the expert, not the court. In the circumstances, an order from the court for disclosure of such documents was not “desirable” (still less necessary) within the test set out in r.31.16.
Mr Justice Fraser endorsed the comments made by Jackson J in Birse Construction Ltd v HLC Engenharia e Gestao de Projectos SA  EWHC 1258 (TCC) that “Given the level of co-operation between opposing parties, which is a normal feature of TCC litigation, I would not expect an order for pre-action disclosure to be appropriate in most cases which come before this court”.
Lucie Briggs (instructed by Clarion Solicitors Ltd) for the Respondent.
To read the full judgment please click here: Taylor Wimpey UK Ltd v Harron Homes Ltd  EWHC 1190 (TCC) (13 May 2020).
13 May 2020