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The High Court makes it easier for borrowers to obtain documents from their lenders before bringing an action, warns Jonathan Hoey, head of Banking and Financial Services Litigation at TLT and Suzanne MacDonald, head of Financial Services Regulation.

The Press has been full of cases fairly recently concerning attempts by borrowers to find as many loopholes as they can in the lending documentation to avoid liability to repay their debts, whether secured or unsecured. A weapon in the borrowers' armoury is to ask their lender to provide documentation in advance of bringing a claim. Searching for documents which may be several years old must place an administrative burden on lenders in terms of time and cost. The judicial thinking used to be that the borrower had to show a 'real prospect of success' before the court would order the lender to incur such expense.

The High Court has just held in the case of Kneale v Barclays Bank plc (t/a Barclaycard) [2010] EWHC 1900, that the proper test is that the borrower need only show, "some sort of prima facie case which is more than a speculative 'punt'".

Jonathan Hoey says "Lenders should expect more demands for disclosure of documents in consequence and will need to be alert to challenging the basis of any potential claim.'"