The court found the requested documents were too broad and the proposed claims insufficiently clear
The High Court has rejected a pre-action disclosure application brought by Thomas Benski and Marisa Clifford against Pulse Films Limited and three individuals over an alleged unpaid debt and claims of fraudulent misrepresentation and unlawful means conspiracy.
Deputy High Court Judge Peter MacDonald Eggers KC dismissed the application under CPR 31.16 on 3 September 2026. The judgment concerned documents the applicants sought before deciding whether to bring substantive proceedings.
Benski and Clifford were founders, directors and shareholders of Pulse Films. In December 2021, they sold their remaining shareholding to the Vice Group for US$10 million in cash and a secured loan note worth US$43.24 million, payable in instalments.
The applicants said more than US$20 million remained unpaid. They alleged that the respondents had made repeated false assurances about the value, solvency and proposed sale of the Vice Group, causing them not to exercise contractual enforcement rights.
The respondents denied the allegations and argued that the disclosure request was an unfocused fishing expedition. They also challenged the clarity of the proposed fraud and conspiracy claims.
The applicants sought documents covering several categories, including material concerning potential sale prices and valuations, correspondence about the Vice Group’s value and solvency, and documents allegedly relating to information being withheld from the applicants.
Under CPR 31.16, the court can order pre-action disclosure only where specified conditions are met. These include circumstances where both sides are likely to become parties to subsequent proceedings, the documents would fall within standard disclosure if proceedings had already started, and disclosure before proceedings would be desirable to deal fairly with the anticipated proceedings, assist resolution without proceedings or save costs.
The judge accepted that the applicants and respondents were likely to become parties to proceedings and that disclosure of at least some documents could be desirable.
However, he found that the applicants had not satisfied the requirement concerning standard disclosure for much of the material sought. The central problem was that the proposed claim was not sufficiently specific.
The applicants had not clearly identified which individuals allegedly made particular representations, what was said, when it was said or in what circumstances. The judge said the uncertainty was even greater in relation to the alleged conspiracy.
The court also found that the requested categories were too broad. The proposed disclosure covered a period from June 2022 to May 2023 and would have involved reviewing an estimated 264,000 documents, with around 6,600 potentially requiring substantive review. The estimated cost was at least £440,000 plus VAT.
The judge concluded that this would place a disproportionately heavy burden on the respondents. He also noted that the applicants said they could bring their claims using the evidence already available to them, although their case might later require amendment.
The preferred course, he said, was for the applicants to commence proceedings and serve a properly particularised claim. This would define the issues and allow disclosure to take place through the usual litigation process.
The court therefore dismissed the application for pre-action disclosure under CPR 31.16.