Commercial Court provides guidance on pre-action disclosure in commercial cases: asymmetry of information in misrepresentation claims will not take a case out of “the usual run”

The Commercial Court has given judgment in the matter of Union Bancaire Privée, UBP SA v L Catterton Europe SAS [2026] EWHC 2041 (Comm), a pre-action disclosure application in the context of a proposed deceit claim involving a private equity fund. The decision provides helpful guidance as to the circumstances in which the court will, and will not, order pre-action disclosure in commercial cases. In particular:

1. An asymmetry of information between the parties is an entirely common feature in threatened misrepresentation claims in the Commercial Court. Where, as in the present case, an applicant’s position was that it could plead a claim on the basis of the information already available to, an asymmetry of information will not be sufficient to take the case outside of the ‘usual run’ to justify an order for pre-action disclosure being granted.
2. Similarly, the fact that the pre-action disclosure sought would enable the intended claimant to plead its claim with greater precision will not be enough to justify an order for pre-action disclosure. Particularly in cases in which it is unlikely that it would avoid the need for the claim to be amended following full disclosure in the proceedings in due course.
3. When it comes to pre-action disclosure, the Commercial Court Guide makes clear that, subject to complying with the relevant pre-action practice direction and applicable protocol, parties are not generally expected to engage in elaborate or expensive pre-action procedures.

Marcia Shekerdemian KC and Francesca Mitchell acted for the successful Respondent, instructed by a stellar team at Mishcon de Reya LLP: Janet Tobin, Jenny Vipond and Emma James.

Read the full judgment