Inspection, Experiments and Samples of Property before Court Litigation

In English litigation, parties intending to commence proceedings may apply for court orders to inspect documents and property prior to commencement of the litigation. Section 52 of the Senior Courts Act 1981 gives jurisdiction to English Courts to make orders for inspection of property prior to issuing a claim form. This section of the Act sits alongside two powers for the court to grant disclosure of documents and information.

Other Methods of Disclosure

Firstly, the court may make an order for Pre-Action Disclosure, whereby an intending claimant files and serves an application against a potential defendant before proceedings are commenced. Secondly, once proceedings have commenced, a party to the litigation may apply for a third party disclosure order to obtain inspection of documents from third parties to the litigation.

Inspection and seizure of property before legal proceedings

In the event that a potential litigant wishes to inspect property from a person who is not intended to be a defendant in the intended litigation, they are left with the jurisdiction granted by section 51 of the Act. This section states:

“33. Powers of High Court exercisable before commencement of action.

(1) On the application of any person in accordance with rules of court, the High Court shall, in such circumstances as may be specified in the rules, have power to make an order providing for any one or more of the following matters, that is to say:

(a) the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject-matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings; and

(b) the taking of samples of any such property as is mentioned in paragraph (a), and the carrying out of any experiment on or with any such property.

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‘Property’ is deemed to include land, chattels and any other corporeal property of any description, and thus on the face of it the definition of property includes documents (see below). Such orders may be made therefore for the preservation, custody or detention of property prior to litigation.

Applications for disclosure of property pursuant to s 33(1) must show, preferably by reference to draft particulars of claim, how the property may become relevant to subsequent proceedings and the issues that will arise in that subsequent litigation. This jurisdiction is not frequently used as other options are available for the preservation of documents, primarily on applications for freezing orders and search orders.

In the case of documents, whether or not a written document will fall within the meaning of ‘property’ depends upon whether the party intends to rely on the writing appearing on the object or whether the relevant issue arose from the physical object itself. Accordingly, documents may be made the subject of an order in some circumstances, but will generally be excluded.

This leaves the claimant wishing to preserve property to consider applications for search orders, Susman Orders (orders to copy and deliver documents without notice to the defendant), freezing orders and applications for delivery up of goods under the Torts (Interference with Goods) Act.