Commercial Court refuses pre-action disclosure in investment fraud claim

03/08/26

UBP, a Swiss private bank, sought pre-action disclosure from L Catterton Europe SAS, a French private equity firm, in support of a deceit claim arising out of its indirect investment in the business behind the Jott clothing brand. UBP alleged that senior individuals at LCE knew that valuation representations made in 2023 had become materially false and failed to correct them before UBP invested.

Louise Hutton KC (sitting as a Deputy High Court Judge) held that every threshold condition in CPR 31.16 was satisfied but dismissed the application in the exercise of the discretion. The Court found that UBP’s requests were not sufficiently narrow and focused and would require an extensive disclosure exercise; the proportionate course was for disclosure to occur under PD57AD after proceedings were issued.

Three points will be of wider interest to practitioners.

First, LCE argued that the application had to be dismissed because the English court would have no jurisdiction over the substantive claim. The Court rejected that submission as a basis for dismissing the pre-action disclosure application. For the purposes of the application, a claim that information supplied under the parties' Letter Agreement involved fraudulent misrepresentation was a claim "connected with" that agreement, which sufficed for CPR 31.16(3)(a) and (b). Following Total E&P Soudan SA v Edmonds [2007] EWCA Civ 50, forum arguments going to a possible CPR 11 stay — including whether Article 3 of the 2005 Hague Convention reaches asymmetric jurisdiction clauses — were not matters for the hearing.

Second, the Court held that LCE had failed to engage with the substance of UBP's claim, as the Pre-Action Practice Direction required, and paragraph B.3.2 of the Commercial Court Guide did not dilute that obligation. That failure may yet have consequences in the substantive proceedings, but it did not justify pre-action disclosure; the same paragraph of the Commercial Court Guide confirms that parties are not expected to undertake extensive pre-action disclosure.

Third, UBP's allegations carried the specificity and conviction that Black v Sumitomo [2002] 1 WLR 1562 demands. But UBP could already plead a claim that would survive strike-out, so this was not a case where the strictures of pleading fraud made disclosure necessary.

The judgment can be read here.