UK Construction and Law
A request to search 264,000 documents before any claim is issued is refused as a matter of discretion
By Staff Writer | 6 September 2026
Fraud allegations and a debt of more than 20 million dollars did not persuade the Commercial Court to order pre-action disclosure. The categories were too wide, the exercise was priced at 440,000 pounds plus VAT, and the applicants accepted they could plead without it.
Thomas Benski and Marisa Clifford v Pulse Films Limited and others [2026] EWHC 2280 (Comm) was released on 4 September 2026 and is the second refusal of pre-action disclosure to reach the public record in a week. It repays reading by anyone tempted to ask for documents before issuing.
The claim behind the application
The applicants founded, directed and held shares in a media production company. In December 2021 they sold their remaining shareholding for 10 million dollars in cash and a secured loan note of 43.24 million dollars payable in instalments, guaranteed by a company in the buying group and subordinated to a senior credit agreement. On default the note gave them a forced sale right requiring the company to be sold to realise enough value to repay the debt.
They say they are owed more than 20 million dollars and that they were induced not to exercise the forced sale right or the guarantee by repeated and false assurances about valuation, solvency and an imminent sale of the group. They allege fraudulent misrepresentation and unlawful means conspiracy against the company and three of its former directors, officers or senior employees. They applied for pre-action disclosure under CPR rule 31.16 and section 33(2) of the Senior Courts Act 1981.
Why it failed
The judge assumed jurisdiction and refused the order as a matter of discretion, for seven reasons.
The categories were not precisely and narrowly defined. They covered a full year of documents, from June 2022 to May 2023, and were framed by phrases such as relate to, mention and regard, which the judge described as amorphous in scope and which would have required the respondents to exercise judgment about what fell inside them.
The burden was disproportionate. On the respondents' evidence the starting pool was 264,000 documents, reducing to about 6,600 likely to need substantive review, at a cost of at least 440,000 pounds plus VAT. Even with the applicants bearing that cost, a further disclosure exercise with substantial duplication would follow if proceedings were issued.
The substantive claim was not clearly formulated, and the respondents could not be expected to answer categories built on it. Confidentiality told against the order: the public interest in the fair disposal of disputes justifies interference with confidentiality inside proceedings, but there is no equivalent consideration before a claim is issued and before the parties have pleaded.
There is nothing unusual or noteworthy in the Applicants' complaint which justifies making an order for pre-action disclosure.
Peter MacDonald Eggers KC, sitting as a Deputy Judge of the High Court
The allegation of fraud did not assist. The judge applied the settled position that an allegation of fraud does not give a prospective claimant privileged access to disclosure unless the allegations carry both specificity and conviction and the request is appropriately focussed, and that the court should be slow to allow a review of another party's documents in place of focused allegation.
The last reason is the one that will decide most applications of this kind. The applicants' own evidence said they could make their claim on an inferential basis without disclosure, although the evidence was incomplete and pleadings would likely need amendment. If a viable claim can already be pleaded, nothing is likely to escape detection once the litigation process starts, and the case for early disclosure falls away.
The practical lesson
The judgment records that orders for pre-action disclosure in the Commercial Court have repeatedly been described as unusual, and that passing the jurisdictional threshold creates no presumption in favour of an order. A delay of 18 to 24 months between first intimating the application and making it was given little weight only because the respondents did not press the point.
For a claims practitioner the message is that pre-action disclosure is not a route to test whether a case exists. Narrow the categories, shorten the date range, explain what the pleading cannot say without the documents, and be ready for the answer that if you can plead it, you should.