Pre-action disclosure in commercial claims: every CPR 31.16 condition met, and still refused

Pre-action disclosure was refused in Union Bancaire Privée, UBP SA v L Catterton Europe SAS [2026] EWHC 2041 (Comm) even though every threshold condition in CPR 31.16 was satisfied. Louise Hutton KC, sitting as a Deputy High Court Judge, dismissed the application in the exercise of the discretion, holding that requests of that breadth belonged in disclosure after issue rather than before it.

What did the Commercial Court decide?

UBP, a Swiss private bank, sought disclosure from L Catterton Europe SAS ahead of a proposed deceit claim arising from its indirect investment in the business behind the Jott clothing brand. The allegation was that senior individuals at LCE knew valuation representations made in 2023 had become materially false and did not correct them before UBP invested.

The court accepted that the jurisdictional gateway was open. LCE argued the application had to fail because the English court would have no jurisdiction over the substantive claim, and that submission was rejected as a basis for dismissal: a claim that information supplied under the parties’ Letter Agreement involved fraudulent misrepresentation was a claim connected with that agreement, which was enough for CPR 31.16(3)(a) and (b). Following Total E&P Soudan SA v Edmonds [2007] EWCA Civ 50, forum arguments pointing towards a possible CPR 11 stay, including whether Article 3 of the 2005 Hague Convention reaches asymmetric jurisdiction clauses, were not for this hearing.

So the application cleared every hurdle it had to clear, and then lost anyway.

Why did an application that met every condition still fail?

Because the requests were not sufficiently narrow and focused, and complying with them would have meant an extensive disclosure exercise before proceedings had even been issued. The proportionate course, the court held, was for disclosure to happen under PD 57AD once the claim was on foot.

That is the practical lesson, and it inverts how these applications are usually prepared. A good deal of the work on a CPR 31.16 application goes into the threshold conditions, on the assumption that satisfying them is the contested part. UBP is a reminder that the conditions are a gateway and not a result, and that an application drafted wide enough to be useful is often drafted wide enough to fail. Narrowing the request is not a concession made to improve the odds; it is the application.

The court also addressed the fraud point directly. UBP’s allegations carried the specificity and conviction that Black v Sumitomo [2002] 1 WLR 1562 requires, so this was not a case where the applicant fell short of the pleading standard. It was the opposite. UBP could already plead a claim capable of surviving strike-out, which meant the strictures of pleading fraud did not make disclosure necessary. An applicant who is nearly able to plead its case is in a weaker position than it might expect.

Does the defendant’s silence help the applicant?

Not enough to win the application, though it may cost the defendant later. The court found that LCE had failed to engage with the substance of UBP’s claim as the Pre-Action Practice Direction required, and that paragraph B.3.2 of the Commercial Court Guide did not dilute that obligation. The failure may yet have consequences in the substantive proceedings.

It did not, however, justify pre-action disclosure, and the same paragraph of the Guide confirms that parties are not expected to undertake extensive pre-action disclosure in any event. For anyone drafting a letter before claim, the takeaway runs in both directions: a defendant that stonewalls is building a costs problem for itself, and a claimant that treats stonewalling as its route to an order is likely to be disappointed.

What to do instead of applying

Where the documents genuinely sit on one side, the realistic options are a tightly drawn request for a defined category, pressed properly through pre-action correspondence, or issuing and using PD 57AD. The middle course, a broad application dressed as a narrow one, now has an unhelpful authority against it and carries the costs of losing.

One procedural footnote for anyone citing the case in the autumn. The Commercial Court sits within the King’s Bench Division until 1 October 2026, when it moves into the new Business and Property Division, so a reference to this judgment will describe a court structure that no longer exists by Michaelmas. Costs consequences are worth modelling before any application of this kind, particularly given that court fees rose on 13 July.