Earlier this month, in Carillion Plc (in liquidation) (“Carillion“) v KPMG LLP & Anor (“KPMG“) [2020] EWHC 1416, the Commercial Court dismissed Carillion’s application for pre-action disclosure by KPMG. The Court confirmed that to obtain an order for pre-action disclosure in the Commercial Court, the circumstances must be outside the “usual run” and the case must not be of the norm.

Background

Following Carillion’s well-publicised collapse in 2018, Carillion alleged that its former auditors, KPMG, failed to detect that Carillion’s financial statements did not reflect its true financial position.

A Parliamentary Select Committee investigated Carillion’s allegations and raised criticisms regarding KPMG’s failure to give proper consideration to (i) contract revenue and (ii) the carrying value of goodwill. Carillion has indicated that it believes KPMG’s auditing was negligent in relation to these matters and has stated it has a “settled intention” to commence proceedings against KPMG.

Carillion applied for an order for pre-action disclosure from KPMG in relation to these two aspects. Carillion contended that the disclosure was necessary because KPMG had refused to provide any of its working papers voluntarily, despite requests dating back to 2019. Further, these papers would be core documents in any future negligence claim against KPMG.

KPMG resisted the application on the grounds that (i) Carillion was unable to show that standard disclosure would extend to the documents sought (ii) the disclosure would not assist with settlement, save costs or dispose of the anticipated proceedings and (iii) discretionary considerations favoured dismissing the application.

Judgment

The Court found that the jurisdictional thresholds enabling it to award pre-action disclosure had been fulfilled. However, nevertheless in exercising the Court’s discretion, the application was dismissed. The Court considered the question of whether “…the request for pre-action disclosure further[s] the overriding objective in this case“.

The Court considered that it did not because firstly, Carillion could plead its case based on the documents it already had and this was evidenced by pre-action correspondence. Secondly, pre-action disclosure is not the norm in the Commercial Court. This was shown by the absence of any recent authority where such disclosure has been ordered. Carillion was seeking a level of assurance and certainty that was inappropriate. Thirdly, KPMG would be required to review an unduly large number of documents for it to comply with the order. Fourthly, there was no real prospect of amendments to the pleadings being avoided in any event and there was a possibility of “…further serial applications for further pre-action disclosure“. Fifthly, the circumstances of this case meant it would only fall outside the “usual run” if KPMG had breached the Pre-Action Protocol for Professional Negligence, which it had not.

The Court’s view was that granting the application would not further the overriding objective or enable efficient case management of the litigation.

Comment

This judgment provides a helpful analysis of the jurisdictional thresholds which the Court will consider when determining whether to grant an application for pre-action disclosure. It also provides useful confirmation that the Court is always mindful that pre-action disclosure is not the norm in the Commercial Court and that, as a matter of course, reasonable requests for documents should be made in conjunction with a Letter of Claim.