England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		The Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL
		27 january 2016

RICHARD SPEARMAN QC:

1. This is an application for pre-action disclosure made pursuant to section 33(2) of the Senior Courts Act 1981 and part 31.16 of the Civil Procedure Rules.
2. The applicant, who is represented by Miss Stephanie Tozer, is the present long leaseholder of Flat 2, 6 Cheyne Gardens, London SW3. The flat was assigned to the applicant on 31 March 2015 by a company called Chogorros SA.
3. In the papers before me today, there is a lease dated 29 May 2013 in which the freeholder is described as 5-11 Cheyne Gardens Freehold (2011) Limited, and the lessee or tenant as Chogorros SA. The address of Chogorros SA is given as c/o MN Trust at an address in Switzerland.
4. The applicant's position is that he is the beneficiary of a trust which owns Chogorros SA and that he, or persons or entities associated with him, also own three other flats within the relevant block. The block is managed by a right to manage ("RTM") company called 5-11 Cheyne Gardens RTM Company Limited.
5. There are six respondents to the application who are represented by Mr Robin Hopkins before me. The first respondent is the company secretary to that RTM company. The second to fifth respondents are directors of that company, and the sixth respondent is a surveyor who acted for that company in respect of the application for a licence to alter, which is at the heart of the applicant's complaint.
6. In short, the position is that in early July 2014, Chogorros SA made an application for, first of all, a licence to assign the lease of the flat to the applicant and, secondly, for a licence to alter. The RTM company indicated that the licence to assign would be granted, but the licence to alter was not granted until 31 March 2015.
7. The applicant's central complaint is that there was an unreasonable delay in granting the licence to alter, and what he says he wishes to do is to obtain pre-action disclosure with a view, subject to what the disclosure reveals, to perhaps bring proceedings for conspiracy against all six respondents. The guts of the conspiracy claim would be that they combined together and possibly, I suppose, with or using as a vehicle the RTM company, to unreasonably delay the consent for the licence to alter. That is the heart of the underlying grievance of the applicant.
8. The documents which are the subject of the application are, "All correspondence between any of the respondents relating to the application by the applicant for a licence to alter".
9. One of the matters referred to in the cases concerning CPR 31.16 is the question of compliance with the obligation to act reasonably in exchanging information and documents relevant to the claim in circumstances where there is no pre-action protocol applicable to the type of claim that is in contemplation. As I understand it, there is no pre-action protocol applicable to proposed conspiracy claims, and therefore that consideration arises. This is referred to in  [58] of the judgment of Rix LJ in Black & Ors v Sumitomo Corporation & Ors [2001] EWCA Civ 1819, [2002] 1 WLR 1562 ("Black v Sumitomo").
10. What is said there is said in the context of a case of alleged fraud and, in my judgment, the type of claim which is said to be in contemplation here, namely a conspiracy claim, especially if it is a conspiracy to injure claim, is analogous to a fraud claim for purposes of this consideration. In other words, it involves serious allegations which one would be hesitant about advancing by way of a pleaded case as a barrister without appropriate supporting material, the type of case which, generally speaking, the courts will be reluctant to take as likely to be in existence. They would be cautious about a conspiracy claim, just as they would be cautious about allegations of dishonesty.
11. The question arises because one factor relevant to applications under CPR 31.16 is whether there has been a failure by the respondents to act reasonably in exchanging information and documents prior to the launching of the application. What Rix LJ states is that set against the background of that obligation:

"It is hard to think that a prospective claimant could easily say that his allegedly fraudulent prospective defendant had failed to cooperate by refusing widespread disclosure in response to unspecific and unverified (because unpleaded) allegations."

12. What happened in the present case is that a letter was written by the applicant's solicitors on 17 June 2015. The version that has been drawn to my attention is at pages 221 to 222 of the bundle, which was sent to Susan Metcalfe, the first respondent. But I believe I am right in saying that a letter in identical terms, save for the name of the addressee, was sent to each of the other respondents.
13. The letter refers to recent licences to alter both the flat which I have referred to and another flat at flat 2, 9 Cheyne Gardens. It refers to clause 4.8 of the leases of the properties, which contains, at clause 4.8.1, a covenant on the part of the lessee:

"Not at any time during the term without prior consent in writing of the Lessor (such consent not to be unreasonably withheld or delayed) to cut or injure, or permit to be cut or injured any of the walls timbers or ceilings of the Demised Premises nor without such consent as aforesaid alter or permit to be altered the plan layout height or elevation of the Demised Premises or the Building or the architectural appearance or the architectural decoration thereof nor without such consent as aforesaid erect or permit to be erected any internal partitions for dividing rooms."

14. Then the letter says that the applicant has taken proper steps to obtain approval for the works he was planning to implement. It says applications were made to make alterations in July 2014. The process took approximately nine months to complete. There were a series of reasonable requests for information made during that period, in circumstances in which Mr McQuade had been appointed to review the licence terms and proposals soon after the RTM company received the application.
15. Then the letter states that from 23 July 2014 onwards, Ms Metcalfe in this case, but it applies to the other addressees as well, were creating unlawful barriers to the granting of a licence, and seeking to delay consent on the basis of a structure which had been erected in the common parts. It states that by October 2014, even Ms Metcalfe was admitting that progress involving Mr McQuade was slightly slow, which is said to be a gross understatement. Then these words appear:

"It is clear that generally and specifically during this time, the directors of the RTM company had a dim view of our client. When issues were raised by our client, such as the roof, comments such as 'Mercifully this was one time he decided not to fight a battle', were made when our client responded positively to the view of the RTM company. This suggests that unless our client agreed with the points made by the RTM company he would continue to be treated unfairly. Moreover, the directors created and maintained 'an Alireza file' [I interpose that this is a reference to the applicant's first name] and confirmed that 'The whole raison d'etre for the RTM company was the concern of the residents at the prospect of the management of the buildings being in the hands of Ittihadieh after he bought the head lease'. Mr May [who is one of the respondents before me] even suggested to the other directors that if an application to become a director was received from our client that it was rejected.

The directors of the RTM company clearly allowed their personal feelings about our client to interfere with his application for the licences to alter, as they did with other matters.

It is considered that you, the directors and Mr McQuade conspired to injure our client. The delay which followed caused our client significant losses due to increased fees including from his solicitors."

16. Then the letter goes on to make the point that there must be almost certainly correspondence relating to the events rehearsed in the letter existing between the various now respondents to the application, and that those documents should be disclosed pursuant to CPR 31.16. The letter then continues:

"We therefore require you within 48 hours to disclose to us and provide us copies of all correspondence you have had with the directors of the RTM company and Mr McQuade in connection with the application for Licence to Alter by our client.

If you fail to provide these documents we will make the relevant application to court and refer the court to this letter."

17. On 18 June, the following day, at page 223 in the bundle, Ms Metcalfe sent a letter acknowledging receipt of the letter of 17 June on behalf of herself and the directors of the RTM company and said that consideration will be given to the letter, but that it could not be done within 48 hours:

"particularly as we are being bombarded with other threatening litigation by your Client with which we are currently having to deal."

18. On 24 June, page 322 in the bundle, a substantive response was sent by some solicitors, Stitt & Co, acting on behalf of the respondents. That letter took a number of points. First of all that flat 2, 6 Cheyne Gardens had been owned at all material times by Chogorros SA, that the licence to alter was granted to that company on 31 March, on the same date that the lease had been transferred to the applicant. It is said that Chogorros SA is now in liquidation.
19. With regard to flat 2, 9 Cheyne Gardens, the letter stated that this was not owned by the applicant, and therefore it was suggested he did not have any standing to bring proceedings for conspiracy to injure him. The letter continues:

"Since we dealt with the grant of the licences to alter we can confirm that there was no delay on the part of the RTM Company or those advising it but considerable delays on the part of the lessees no doubt in part on account of the need to obtain planning consent which was refused. The requirement for the lessee to produce properly developed designs for which he was seeking consent is normal practice.

Mr Greilsamer [who is now a respondent before me] was not made a director of the RTM Company until 13^th October last and was not involved in any of the decision making regarding licences for alteration.

Your letter is the latest in a line of vexatious requests made by your client with the intention of harassing our clients. They will not be providing the Pre-action Disclosure you seek and any application will be contested. We put you on notice that if an application is made and is unsuccessful we will invite the Court to consider a wasted costs order against you."

20. In the meantime, before the letter of 24 June was written, the application which is now before me was issued on 23 June 2015, and my understanding is that when the letter of 24 June was written, it was not appreciated that the application had already been issued because it had not been served at that time.
21. The allegations in the letter of 17 June are, in my judgment, unspecified. They are obviously not pleaded, but they are also, in my view, unspecified. Their basis is more fully explained in the applicant's first witness statement at paragraphs 5 to 21. I certainly do not propose to read all of that, although it could be read into this judgment if a longer transcript is required.
22. Between paragraphs 5 and 12, the applicant sets out his case about a series of events and delays which occurred with regard to the licence to alter up to October 2014. At paragraphs 13 to 20, he then deals with further delays which occurred from November 2014 onwards. At paragraph 21, he says he had a number of other legal disputes with the RTM company during that time, including an application under the Data Protection Act, and he says he considers that the fact he commenced those proceedings, together with the personal feelings the directors of the RTM company had towards him, had encouraged them to behave in a manner which is discriminatory towards him. Then in paragraph 22, he says:

"Based upon the above I consider that I have a claim against the Respondents for damages for the tort of conspiracy to injure me. I also have a claim against the RTM company for damages caused by their unreasonable delay in providing that consent."

23. It seems clear to me that whatever the motives which may have lain behind the events and non-events down to 20 November 2014, and whatever delays may have flowed from those matters, they did not cause any loss to the applicant or anybody. The reason for that appears, in my judgment, from an e-mail of 23 December 2014, which is at pages 73 and 74 of the bundle. That is an e-mail from a solicitor at Taylor Wessing LLP, who was then acting for the applicant, to the respondents' solicitors, Ms Metcalfe, and one of the other respondents, Mr May.
24. It appears from that e-mail that the planning consent which the applicant originally sought was refused, and no planning consent was granted until around about 20 November. What is said in that e-mail towards the end is this:

"Given the revised drawings were provided on 20 November for the revised scheme, this is looking like unreasonably withholding or delaying the consent."

25. Then there is a point made about acoustic tests:

"The client will have acoustic tests for flat 2/9 done before 10 January. With that in mind can you give me a comprehensive list of those matters which the RTM company says are outstanding before the licence can be completed and I need an expected completion date both for flats 2/6 and for 2/9 all of the information is required before 6 January 2015."

26. Earlier in the e-mail, it is stated that "The freehold company is entitled to receive notice of alterations and has 14 days to comment in relation to non-structural matters, and 30 days for structural".
27. My reading of that e-mail is that effectively time on the revised plans did not start running until 20 November or thereabouts, and the author of the letter, who is a partner of Taylor Wessing LLP, by reference to the freehold company's entitlements, appears to be pointing to a 30-day period for comment or approval relating to structural matters.
28. There is a reply to that e-mail on page 73 of the bundle of 29 December 2014 from Mr May. It deals with flats 2-9 and 2-6 separately. It sets out a number of requirements which it says need to be complied with before, as I read it, the licence to alter can be given. It ends by saying:

"I am asking by copy of this email that one or other of the copy addressees give you a likely completion date for each of the licences as soon as possible after 5^th January though it seems ambitious to ask for this to be done by 6^th January. In case of the last requirement for 2/6, action lies with your client and not the RTM company."

29. That final sentence is a reference to a point made in the e-mail that the applicant should comply with the terms of his lease and settle the legal bill in connection with his erection of the store room, which I understand to be a reference to a partial partitioning of one of the landings in the block, which the RTM company complained about and the applicant subsequently removed.
30. A series of further dates were drawn to my attention by Mr Hopkins in the course of his submissions. He took me through documents which go right up to early March 2015.
31. Documents he drew to my attention are first of all an e-mail of 16 January 2015 at page 92 in the bundle. This is an e-mail relating to the scheme at these two flats and anomalies within the licence to alter which it said hoped would be resolved promptly.
32. Then on 20 February, there were two documents he drew to my attention at pages 98 and 101. I need not read them all out. The one at page 98 is an e-mail from Mr McQuade, and at page 101 is another e-mail from Mr McQuade. Effectively what is being said is that there are ongoing queries and concerns, and amongst other points that Mr McQuade has other things to do and cannot always just drop everything in connection with this one matter.
33. The submission was made that the contents of those e-mails, and I accept this, were completely normal and to be expected, and not on the face of them untoward in any way.
34. Then the terms of the licence needed to be negotiated, and an undertaking from the applicant's solicitors was required. That took everything up to 2 March 2015 when the terms of the draft licence were agreed. The remainder of March 2015 up to the final licence being agreed was essentially, on submissions made to me, down to the applicant's solicitors needing to be put in funds. One reference to that is in Mr May's second witness statement at page 347-351 of the bundle in which he sets out some of the history.
35. Finally there was consent required from the Cadogan Estate, which was made available on 23 February 2015, and that is referred to in a document at page 106 in the bundle.
36. The submission was made that, if you look at it in the round, this history is explained by those matters in a way which does not lend any credence to the proposed conspiracy claims.
37. Miss Tozer took me to a number of documents showing what she said was intransigence (that was my word, not hers) and delay. I believe I am right in saying -- I do not make any criticism of her for this – that they were all in the early part of the chronology, so they would not appear to me to be particularly relevant to a claim for damages for conspiracy in light of the fact that the initial planning application was refused. It seems to me they have no actual bearing on loss, but they might be evidence of motivation, which would be relevant to a claim for damages relying on later events. After all that, I accept that.
38. She also referred me to an e-mail of 20 February 2015 at page 99 in the bundle, which refers to the fact that somebody who had not been at a site visit then started to amend the agreement reached at the site visit in relation to noise tests, and complaint was being made about that by Taylor Wessing LLP on behalf of the applicant. Within these papers as well is an ongoing debate about whether certain requirements needed to be addressed as a condition of the licence to alter, or whether (as contended on behalf of the applicant) they ought to have been left over to be dealt with after the works had been completed.
39. Obviously I am not trying the case. However, I hope what I have said is sufficient to indicate the basis for my conclusion, which is that on the material that I have seen, I am very unimpressed by the notion that looking at the contemporary documents there is any objective support for the proposition that there was some form of conspiracy going on here.
40. I think it is important to bear in mind two documents in particular. One is at the very beginning of all of this, the initial response at least as recorded in the documents. I think it was Mr May who was positive; he did not see a problem about the licence to alter being given. His e-mail in that regard is at page 359, 3 July 2014, addressed to Ms Metcalfe. I will not read it all, but it says at the beginning:

"Although this looks a major project, I cannot see immediately why the RTM company should not grant a licence to make alterations."

41. Then he makes a number of points which were submitted to be, and which I agree seem, entirely reasonable about other directors seeing the applicant's proposal and a structural engineer advising, and advice on noise disturbance. So that is important to bear in mind.
42. The other document which is important to bear in mind is a document upon which the applicant places considerable reliance, which is a document which shows the reasons behind the creation of the RTM company. That is a major plank in the applicant's case. It is at pages 120 to 121 of the bundle, and is an e-mail of 13 October 2014 from Mr May to persons who are now his fellow respondents, relating to the applicant's application to become a director of the RTM company and rehearsing an e-mail received from Elaine Dobson of Taylor Wessing LLP. The e-mail from her is quoted saying as follows:

"There is nothing in the RTM constitution to prevent all members, and indeed outside persons, from being a director. Alireza wants to have a say on the board given his trust and he personally holds an interest in 4 flats using the common parts of 6 and 9. I will therefore be providing the RTM in due course with an application for Alireza to be a director. There is no requirement to seek approval of the members as this is a board decision. My client is concerned that 3 of the 4 directors had no interest in the common areas used by the majority of members and this is an unbalanced view."

43. That is the e-mail from Elaine Dobson. Then Mr May says this:

"I would ask you to agree now that, if and when such application is received, it is refused. It might be tactful to do so without giving reasons but, if pressed, we should explain."

44. I will give numbers to these points:

"1. It was decided from the outset, and in the interests of keeping things simple, to limit the number of directors to four

2. Resolutions at an extraordinary general meeting on 29^th October 2010 that an additional director be appointed for the RTM company and that Elaine Dobson (as the Ittihadieh's proxy) be appointed a director were defeated

3. In the recent ballot to fill the vacancy created by the resignation of Christopher Neale, Alirezah Ittihadieh received only two votes over and above the four representing his interests

4. His point about the common areas at number 6 and number 9 has been fully met by the establishment of sub-committees of the residents of those building to discuss such matters

5. He spends a great deal of his time abroad

6. In erecting a storehouse on the landing of the staircase to 6 Cheyne Gardens (and resisting our lawyer's demand he dismantle it) he is currently in breach of the following covenants"

45. Then those covenants are set out. Then, finally, the e-mail says:

"It is probably best left unsaid but of course the whole raison d'etre for the RTM company was the concern of the residents at the prospect of the management of the buildings being in the hands of Ittihadieh after he bought the head lease."

46. As I say, that is a major plank of the applicant's case, because that is referred to in his witness statement at paragraph 20, where he has gone over the events up to March 2015 in the chronology, and he points to the fact that that was the raison d'etre of the RTM company, and he points to the suggestion that if an application for him to become a director is received from him, it should be rejected.
47. In my judgment, there is no basis at all objectively to view that e-mail as lending any support to a conspiracy claim. It seems to me that, on the face of it, what is said in that e-mail is entirely explicable and understandable on a basis that has nothing to do with any form of conspiracy in this case. No doubt there are differences, maybe deep differences, and maybe, for all I know, hurtful differences between the applicant on the one hand and other leaseholders in this block of flats on the other. But that does not in my view render any part of what is said in that e-mail improper, unlawful, suspicious or ill-motivated. On the contrary, it seems to me that the reasons set out there are entirely understandable from the perspective of those setting up the RTM company, and those resisting the applicant being made a director of it.
48. I mention next the question of losses. The losses in the letter from Mishcon de Reya of 17 June 2014 were not particularised. That remains the position in the evidence. If one looks at the applicant's third witness statement, paragraph 9 at page 343, he says this:

"Much has been made of the fact my losses have not been particularised. The losses I have suffered include increased legal fees from Taylor Wessing who were required to be involved in what should have been a very simple transaction for many months, increased fees from Water Lily [I interpose there that I understand that they were the applicant's contractors who were going to do work on the flat] (who had to deal with the unusual, unreasonable and ever-changing requests from Mr McQuade) and damages for the stress which has been caused."

49. In answer to some questions from me, Miss Tozer took instructions, and her instructions are that some of the monies were indeed paid by the applicant personally. It is not clear how much he paid, or what he paid is referable to. In other words, it is not clear out of any sum he paid over and above what he says would have been payable in the ordinary course, and which is attributable on his case to delay in granting the licence to alter, what is referable to the period when there was delay before the planning application was approved in its renewed form, and what is referable to the position after 30 days had expired once the renewed planning application had been approved in or about November 2014.
50. I also mention, as I have already indicated, it appears to be common ground that the applicant was not the lessee of the flat and he only became the lessee when the assignment and the licence to alter were both completed on the same date, as I understand it, in March 2015. So that is the position on the face of the lease and on the evidence which I have heard.
51. With that discussion of the factual background, I come to consider the provisions of CPR 31.16 and the authorities. CPR 31.16 is quoted in [5] of Rix LJ's judgment in Black v Sumitomo:

"(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where -

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

(c) if proceedings had started, the respondent's duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.

(4) An order under this rule must –

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require him, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may –

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection."

52. The threshold requirements are four in number. The first two I can take together. They are that the applicant and the respondents are likely to be party to subsequent proceedings. There was no disagreement about the operation of that threshold condition between counsel, and it is discussed at [71] to [72] of Rix LJ's judgment. In [71] Rix LJ says that two questions arise. The first question is whether the statute requires that it be likely that proceedings are issued, or only that the persons concerned are likely to be parties if subsequent proceedings are issued. The second is whether "likely" means "more probably than not" or "may well".
53. He gives answers to those questions in [71] and [72]. In [71], he says the first requirement means no more than that the parties concerned are likely to be parties in proceedings if those proceedings are issued. As to the second issue, he says that, in his view, "likely" here means no more than "may well".
54. Miss Tozer says it is up to her client to choose the cause of action that he wishes to advance. He is not constrained to a claim against the RTM company. It is open to him to sue individuals such as these six respondents if there is an available basis of claim against them, and he can sue them for conspiracy. If he does so, then indeed he will be a party to proceedings, and so will they. So she says that she can get over the first threshold question very easily.
55. The respondents say first of all it is not clear how any coherent claim could be formulated at all. Secondly, any complaint really lies against the company and it is not permissible to try and bring a claim against directors in respect of the way in which they have caused the company to operate. Thirdly, it has been made clear in the correspondence that the second respondent, Mr Greilsamer, played no part in the decisions - this was set out in the letter of response to Mishcon de Reya's letter intimating this application, and it is not clear on what basis the applicant could properly dispute that.
56. Lastly, the position of the first and sixth respondents is different from that of the others, because even if the directors and fellow leaseholders in the block, the second to fifth respondents, have some bad feelings towards the applicant, that does not extend to the first respondent, who is not a resident of the block, as I understand it, or the sixth respondent, who is a surveyor.
57. Miss Tozer's answer to all that, in a sentence, is that they are all exchanging these communications, and they all know what is going on. Her client's case that he wishes to put forward is that they are all involved. It is quite clear, for example, that Ms Metcalfe got the e-mail at pages 119 to 120.
58. The third threshold question is whether these documents which are sought would be covered by the obligation to provide standard disclosure if proceedings were commenced, and, as I understand it, it is accepted that they would. So that requirement is met.
59. I should have said when dealing with whether these parties are likely to be party to subsequent proceedings, the respondents have another point, which is in fact that the correct party is not the applicant, but Chogorros SA itself.
60. The disclosure obligation is accepted as being engaged, so I need not spend time on that. There would be an obligation to give disclosure of these documents if proceedings were commenced, that is not disputed.
61. The fourth threshold requirement that disclosure is desirable for the stated purposes is disputed. The applicant's case is that it is desirable, not to dispose fairly of the anticipated proceedings (that is not argued), but because it would assist the dispute to be resolved without proceedings, or would save costs.
62. It is suggested that if the disclosure was given, there is a prospect that either (a) the respondents, if they are shown to have done something wrong by what is in these documents, would effectively come to their senses and compromise with the applicant, or (b) he would see that he did not have any material to pursue them and would decide not to pursue them. It is said in terms of saving costs that if the applicant is made to advance a case without these documents, he will not have the full details that the documents are likely to reveal, and he will then have to recast his case at some expense at a later date and once he has had sight of these documents.
63. It is right to say that if proceedings for conspiracy were to be formulated, the applicant would be a claimant in them, and the respondents would be defendants in them. On the current state of the evidence, although I think it is extremely unsatisfactory in support of the claim that the applicant has suffered loss, I am not persuaded that the fact that he did not become a leaseholder until the assignment of the lease and the execution of the licence to alter would mean that he would clearly never have an available basis of claim for harm occasioned to him personally.
64. I think he would face some difficulties of formulation if it would be in principle capable of being formulated, but nevertheless if there was indeed ill-will and it was targeted at him, and it did cause him loss, I think he might be able to put forward a claim for damages for conspiracy.
65. I am very sceptical indeed about, and I reject, the notion that disclosure is going to assist the dispute to be resolved without proceedings. It seems to me that almost certainly the applicant is engaged in such a stance of entrenched hostility to the respondents, and they are engaged in such a stance of resistance to his, as they perceive it, harassment of them that the prospects of any disclosure, whatever it may reveal, enabling the dispute to be resolved without proceedings are negligible and probably non-existent.
66. I think with regard to saving costs, although in principle it is right that if the disclosure enabled the applicant to formulate or fortified him in formulating conspiracy proceedings, there would be some saving in costs in comparison to him bringing proceedings without the disclosure. Because all that he would be able to do at the moment is to plead the chronology of events that he relies on, the evidence of animus which he says exists from the setting up of the RTM company and the excluding of him as a director, which he says is evidence of animus, and effectively set out what is in his witness statement, and then say he has been injured by the conspirators; whereas if the material sought to be disclosed contained, for example, overt agreements to deliberately hold back on consent or make requests which are unreasonable, then his case would be stronger. But I think the cost implications, although I accept they arise in principle, would be very small.
67. But what weighs with me most and determinatively are the considerations of discretion which are helpfully discussed in Rix LJ's judgment in Black v Sumitomo. At [88], in a case where the Court of Appeal is exercising its discretion anew, Rix LJ says this:

"That discretion is not confined and will depend on all the facts of the case. Among the important considerations, however, as it seems to me, are the nature of the injury or loss complained of: the clarity and identification of the issues raised by the complaint: the nature of the documents requested: the relevance of any protocol or pre-action-action inquiries: and the opportunity which the claimant has to make his case without pre-action disclosure."

68. At [90] and [91], he says, referring to the facts of that case:

"90. ... This, therefore, is not a case where the prospective claimant has suffered some reasonably plain injury or loss, at any rate on the face of things ...

91. The loss complained of is one thing; the cause or causes of action by which [the claimant] seeks a remedy and the clarity with which the legal issues are raised by such a cause of action are the next matters for consideration."

69. He says, again speaking of the facts of that case, that there is no draft pleading, and again he says, on the facts of that case, with the possible exception of one matter:

"... it seems to me that the complaint, its factual and legal basis, and the issues which it raises, are speculative and in the extreme".

He continues as follows:

"92. In such circumstances, unless there is some real evidence of dishonesty or abuse which only early disclosure can properly reveal and which may, in the absence of such disclosure, escape the probing eye of the litigation process and thus possibly all detection, I think that the court should be slow to allow a merely prospective litigant to conduct a review of the documents of another party, replacing focused allegations by a roving inquisition.

...

95. In my judgment, the more focused the complaint and the more limited the disclosure sought in that connection, the easier it is for the court to exercise its discretion in favour of pre-action disclosure, even when the complaint might seem somewhat speculative or the request might be argued to constitute a mere fishing exercise. In appropriate circumstances, where the jurisdictional thresholds have been crossed, the court might be entitled to take the view that transparency was what the interests of justice and proportionality most required. The more diffuse the allegations, however, and the wider the disclosure sought, the more sceptical the court is entitled to be about the merit of the exercise."

At [97], referring to the facts of that case, he says:

"97. In the present circumstances, the express determination of [the claimant] to commence proceedings, and the avenues open to him to obtain documentation or (as it seems) information from other sources, militate against him."

70. The only other case I need to refer to in the authorities which have been drawn to my attention is the case of Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585, [2014] 1 WLR 2283. Again, the law was helpfully reviewed by Underhill LJ. He summarises Black v Sumitomo in particular in various subparagraphs at [10] of his judgment. Then he discusses the question of the threshold requirements at [23], and he accepts that there is no jurisdiction arguability threshold. He says:

"The jurisdictional requirements for the making of an order under CPR 31.16 are expressly set out at heads (a)-(d) in para. 3 of the rule, and they say nothing about the applicant having to establish some minimum level of arguability ... I accept of course that it be cannot have been the intention of the rule-maker that a party should be entitled to pre-action disclosure in circumstances where there was no prospect of his being able to establish a viable claim; but in such a case disclosure could and no doubt would be refused in the exercise of the discretion which arises at the second stage of the enquiry."

71. At [25], he suggests that the issues arising on an application under CPR 31.16 should be dealt with at the discretionary stage so far as possible, and that is something he extracts from Black v Sumitomo. Finally, he says at [28], reverting to the question of arguability:

"I would prefer to ask whether the applicant has shown some reason to believe that he may have suffered a compensatable injury; and, if so, with what degree of likelihood ... But that is largely a matter of language. The point remains that if, in the present case, there was no reason to believe that the Appellant might have suffered noise-induced hearing loss then it would not be right to order pre-action disclosure; and even if he had got over that hurdle but the claim could nevertheless be characterised as 'speculative' it might be wrong to require any disclosure which was onerous."

72. In my judgment, the one factor which does favour the applicant in the present case is that it would appear to me that the disclosure sought is not unduly onerous. It is not extensive, as far as I understand it. I take into account the fact that it does involve the private correspondence, or involves intrusion into the private correspondence, of the respondents. But at the moment, I am not persuaded that that is sufficient to class it properly as being onerous. They have been using their personal e-mail accounts, conducting business relating to the company. That is a feature of the manner, about which I make no criticism, in which they have chosen to run their affairs. There is an element of intrusion there, as there is in all disclosure and all pre-action disclosure, but I am not persuaded that this makes it unduly onerous.
73. Reverting to the important considerations which Rix LJ mentioned by way of illustration, in my judgment, the remaining factors all weigh heavily and determinatively against the applicant. With regard to the nature of the injury and the loss complained of: as is probably apparent from what I have already said, the claim seems to me to be speculative in the extreme. It does not appear to be logically or objectively supported by any material that I have been referred to.
74. It would be a very serious type of allegation to make, and one I think the court would be generally cautious about recognising, and the loss similarly appears to be very vague and unparticularised. Assuming the applicant can personally recover losses as a consequence of the conspiracy, so far as concerns his personal losses, the financial losses are not quantified. Their attribution to the period of delay which is not attributable to the planning problems has not been explained. We do not know how much he has paid and what it is referable to. The stress, likewise, is something never mentioned in the original letter, and never detailed in the witness statement. On the face of it, it is difficult for me to give much weight to that aspect either.
75. Clarity and identification of the issues raised by the complainant: in my judgment, the case is vague in the extreme. No proper effort was made to articulate it with any degree of detail in the letter foreshadowing the application, and no opportunity to reply to that letter properly was afforded to the respondents, and this is another thing which also weighs against the applicant. The nature of the documents requested: as I say, I do not think it is onerous in the sense of extensive, but it certainly does involve some intrusion into their privacy, which is a relevant consideration.
76. Relevance of protocol pre-action enquiries: in my judgment, this whole application has been brought without proper regard to the letter and spirit of the Civil Procedure Rules, setting out the complaint in proper detail and giving the respondents a proper opportunity to reply before the application is launched. I add that the letter which preceded this application was made against a background in which matters were far from being one way (in that the respondents had complained about the applicant's conduct over a long period of time, and he appears to have accepted that he had called one of the respondents "fucking trailer trash" (although not "white fucking trailer trash") – see [45] of the judgment of HH Judge Seymour QC in the Data Protection Act proceedings at pages 172-188 in the bundle) and appears to have come "out of the blue" some months after the licence to alter had been resolved.
77. Finally, the opportunity the claimant has to make his case without pre-action disclosure: if he has a case for conspiracy, about which I am deeply sceptical from what I have seen, in my judgment it is one that the applicant can plead without the material he now asks me to order.
78. I consider very carefully what Rix LJ said in [90] within the context of the present case. This is not a case where this applicant has suffered a reasonably plain injury or loss, at any rate on the face of things. Echoing what Rix LJ said in [91], I consider with regard to the complaint in the case in front of me, that its factual and legal basis, and the issues it raises are all speculative in the extreme, and I echo what he says in [92] about the court's reluctance to allow a prospective litigant to conduct a review of documents of another party, replacing focused allegations by a roving inquisition.
79. The inquisition is not necessarily very wide, but it is certainly roving, because the nature of the case is you want to see what is in there, says Miss Tozer, and see whether we can effectively build a case on it, or, having read it, decide we do not have a case. It is very much, in my judgment, in the nature of a fishing expedition.
80. Finally, applying [95] and [97], the complaint is not especially focused, but the disclosure sought is quite limited. Those factors effectively weigh on both sides of the scales. But in my judgment, this applicant probably is determined to bring proceedings or complaints one way or another against these respondents, and he is not precluded from doing so (if he has a case) by the non-availability of the documents which are the subject of this application.
81. I have in mind, although no one has drawn my attention to it, that there is a line of authorities which deals with conspiracy claims which recognises that, typically, the nature of a conspiracy is that the victim will not know the details of how the combination was agreed and how it was implemented. All he will be able to do very often is to point in general terms to the nature of the combination between the defendants and the harm that has been occasioned to him. The court, on my understanding of those authorities, would be mindful of that and would be slow to condemn a claim as wrongly or inadequately pleaded because certain details are missing, if otherwise it is a claim which is tenable, for those reasons. As I say, that is my understanding of those conspiracy cases.
82. Lastly, I add almost as a footnote at the end of this judgment, that there was some discussion in front of me as to whether the applicant's conspiracy claim, or prospective conspiracy claim, would be an unlawful means conspiracy claim, a conspiracy to injure claim, or both. I say it is a footnote because my view as to the correct outcome is really the same, whichever of those formulations is right.
83. But on what I have been shown by way of allusion to authority and text from an out of date edition of Clerk & Lindsell which Ms Tozer produced after the short adjournment when I asked her about the law does cause me to question the extent to which unlawful means arise, where, as is sought to be said here, directors join together to cause a company to breach its contractual obligations, i.e. whether a breach of contract is an unlawful means.
84. There are two aspects to that. One is the question of, "Is breach of contract an unlawful means?", and the second one is, "How likely is it that such a claim lies against directors?" Because it would appear to me, as I have said more than once in the course of argument, that in many, many cases where a company is caused to breach its contractual obligations, it will have been caused to do so by the directors. I think it would be opening a very large door to recognise the availability of unlawful means conspiracy claims in every instance where a company has breached its obligations because directors have agreed it should embark upon a course of action which is in breach of contract.
85. On the other type of conspiracy which is mentioned in the Mishcon de Reya letter and the witness statement, namely conspiracy to injure, one has to recognise that it is an essential element of that type of claim that the predominant purpose should be to injure the claimant. That, in my judgment, is quite a difficult factor to bring home in most cases, and certainly, on the material I have, I am not remotely persuaded that there is a respectable case that the matters complained of by this applicant were motivated by such a predominant purpose on the part of these respondents in this case.
86. For those reasons, which I regret may be longer and perhaps more untidy than if I had had time to put what I was I was going to say in writing, this application will be dismissed.