Pre-Action Discovery: Where You Want To Sue But Don’t Have Enough Information To Decide

A decision to commence legal proceedings is not to be taken lightly, and must be based on evidence which actually supports the proposed cause of action (for example, breach of contract, negligence etc).

What if you want to sue, but don’t have sufficient evidence, and you know that the other party is likely to have, or to have had relevant documents which might assist you to decide whether it is “worth” commencing proceedings against that party?

“Pre-action discovery” enables you to obtain an order from the Court to compel the other party to produce relevant documents, to assist you to decide whether to commence proceedings.

In other words, the Court will allow a “fishing expedition”, but only if you satisfy 7 criteria:

1. You ‘may have a cause of action’

This criteria requires you to show that there might be a cause of action which could be demonstrated by the documents sought.  Whilst you do not have to show a prima facie case, it is not enough for you to believe that you may have a cause of action, based on mere allegation, suspicion or assertion.  There must be some tangible, or objective foundation for your belief.

You must also show sufficient, objective evidence, for each element of the asserted cause of action.  For example, in a breach of contract case, you will need to point to sufficient, objective evidence that there is a contract, it has or may have been breached, and you have suffered or may suffer loss or damage because of that breach.

2. The potential cause of action is against a person whose description has been ascertained

You must be able to identify the party you are considering suing, eg a named individual or corporation.

3. You want to commence proceedings against the potential party

This criteria requires you to show not only that you want to commence proceedings, but that if the missing information supports your claim, you would commence legal proceedings.  It is not sufficient to show that you require the information to determine whether or not you want to commence legal proceedings.

4. After making ‘reasonable enquiries’ you have not been able to obtain sufficient information to decide whether or not to commence proceedings

You need to show that you have made reasonable efforts to obtain documents or other information sought from the other party.

“Sufficient information” means no more than what is reasonably necessary to enable you to decide whether to commence proceedings.  This will generally only extend to documents constituting or contemporaneously recording the material facts, or information necessary to determine the material facts.

5. At the time of making the application you have not reached a decision about whether or not to take proceedings

This criteria requires you to show that no final decision has been made about whether to commence legal proceedings.

6. There are reasonable grounds for believing that the potential party has in its possession documents that may assist in making the decision

You need to show some objective basis for your belief that the other party has the documents sought, and also that those documents may materially affect your decision-making process about whether to commence legal proceedings.

7. The application must be supported by an affidavit which is served on the potential party.

The affidavit must be carefully drafted, taking into account the above criteria.

If you satisfy the above criteria the Court has a discretion about whether to order discovery from the other party.  As discovery involves a serious invasion of privacy and confidentiality, the Court will only order discovery if it is reasonably necessary to do so to achieve the proper administration of justice.

Only documents that are relevant to the potential cause of action will be ordered to be discovered, and the scope of the order will be no wider than necessary.

Note that the above article relates to “pre-action discovery” in Western Australia.  However similar rules apply in other jurisdictions.

Greg Carter Litigation Lawyer Perth

“Contact me for a FREE consultation if you are considering commencing legal proceedings.”