Judge says the proposed document search was too broad and the claim insufficiently defined
The High Court has dismissed an application by Thomas Benski and Marisa Clifford for pre-action disclosure in a dispute involving Pulse Films and alleged assurances about the sale and financial position of the Vice Group.
Deputy High Court Judge Peter MacDonald Eggers KC handed down judgment in the Commercial Court on 3 September 2026. The application was made under CPR 31.16 and section 33(2) of the Senior Courts Act 1981.
The applicants were founders, directors and shareholders of Pulse Films. In December 2021, they sold their remaining 22% shareholding to the Vice Group for US$10 million in cash and a secured loan note worth US$43.24 million.
The applicants said more than US$20 million remained unpaid. They alleged that Hozefa Lokhandwala, Bruce Dixon, Nancy Dubuc and Pulse Films made fraudulent misrepresentations, and acted in an unlawful means conspiracy, concerning the Vice Group’s value, solvency and proposed sale.
They claimed that the alleged assurances persuaded them not to exercise contractual enforcement rights, including a forced sale right over Pulse Films and rights under a guarantee issued by Vice Holding Inc.
The applicants sought three broad categories of documents covering the period from June 2022 to May 2023. These included documents concerning potential sale prices and valuations, correspondence about the Vice Group’s value and solvency, and documents allegedly referring to information being withheld from the applicants.
The judge accepted that the applicants and respondents might become parties to subsequent proceedings. He also accepted that disclosure of at least some documents could be desirable for the purposes identified in CPR 31.16(3)(d), including fairly disposing of anticipated proceedings, resolving the dispute without litigation or saving costs.
However, the court found that the applicants had not shown that the documents sought, taken as a whole, would fall within standard disclosure. The proposed claim was insufficiently clear about who made the alleged representations, what was said, when it was said and in what circumstances.
The judge said the conspiracy allegations were even more difficult to define because the applicants had not sufficiently identified the alleged agreement, intention or circumstances in which the respondents were said to have combined.
The court also found that the document categories were broad and generalised. The search would cover a year and use descriptions such as documents that “relate to”, “mention”, “regard” or “refer to” particular matters.
The respondents’ evidence indicated that the exercise would involve reviewing an initial pool of about 264,000 documents, with approximately 6,600 potentially requiring substantive review. The estimated cost was at least £440,000 plus VAT. The judge considered this a disproportionately heavy burden, even though the applicants would have borne the cost.
The court noted that the applicants said they could bring their claim using the evidence already available and inferences drawn from it. The judge said the preferred course would be for them to issue proceedings and serve a properly particularised claim, allowing the issues to be defined before disclosure was ordered in the usual way.
The application was dismissed.