Disclosure and Inspection
Disclosure in Civil Litigation – An Updated Overview
In English civil proceedings, disclosure is the process by which parties make available documents relevant to the issues in dispute. It is a crucial stage in litigation, aimed at ensuring that justice is done on the basis of full transparency between parties. This article provides an updated overview of the disclosure obligations under the Civil Procedure Rules (CPR), reflecting the latest procedural developments, including the permanent introduction of Practice Direction 57AD in the Business and Property Courts.
The Purpose of Disclosure
Disclosure allows the court to adjudicate on the basis of “all the cards on the table”. The obligation extends not only to documents which a party relies upon, but also those which adversely affect its own case or another party’s case, or which support the case of another party. Disclosure may also be obtained pre-action or against non-parties in certain circumstances.
Key Legal Framework
Disclosure in civil litigation is governed primarily by:
- CPR 31 and Practice Directions 31A and 31B;
- CPR 28, in relation to fast and intermediate track claims;
- PD 57AD, which governs disclosure in the Business and Property Courts (B&PCs).
PD 57AD replaced the Disclosure Pilot Scheme (PD 51U) and came into permanent effect on 1 October 2022. It sets out a distinct and more structured approach to disclosure in B&PC claims.
Standard Disclosure and Track Allocation
The general position for standard disclosure is set out in CPR 31.6. Under this regime, parties must disclose:
- Documents on which they rely;
- Documents which adversely affect their or another party’s case;
- Documents which support another party’s case.
However, disclosure orders differ depending on track allocation:
- Fast Track and Intermediate Track: The approach is governed by CPR 28.2. The court may adopt standard disclosure or make tailored orders, particularly where personal injury is not in issue.
- Multi-Track Claims: Since the Jackson reforms, standard disclosure is no longer the default. Instead, the court selects the appropriate disclosure order from a menu of options under CPR 31.5.
- Business and Property Courts: PD 57AD mandates a more sophisticated process, requiring parties to complete a Disclosure Review Document and to obtain directions for Extended Disclosure under a menu of Models (A to E).
Electronic Disclosure and Reasonable Search
The duty to disclose encompasses both paper and electronic documents. The definition of a “document” under CPR 31.4 includes emails, metadata, and deleted files. PD 31B imposes additional requirements for electronic disclosure, including the preservation of potentially relevant material as soon as litigation is contemplated.
The duty to undertake a reasonable search is contextual, taking into account factors such as the number of documents involved, their accessibility, and the complexity of the dispute.
Disclosure Statement and Exchange
Parties are required to complete a disclosure statement, certifying the extent of their search and confirming compliance with the duty of disclosure. Disclosure is usually made by serving a list of documents in Form N265, divided into:
- Documents available for inspection;
- Documents withheld (e.g. on grounds of privilege);
- Documents no longer in the party’s control.
Specific, Pre-Action and Non-Party Disclosure
In appropriate cases, the court may order:
- Specific disclosure (CPR 31.12), where standard disclosure is inadequate;
- Pre-action disclosure (CPR 31.16), where early access to documents is desirable and proceedings are reasonably anticipated;
- Non-party disclosure (CPR 31.17), where third parties hold relevant documents;
- Norwich Pharmacal or Bankers Trust relief, in cases involving wrongdoing or fraud.
The Solicitor’s Duties
Solicitors are under a continuing duty to advise clients on their disclosure obligations, including the need to preserve relevant material and to avoid the creation of new disclosable documents. This obligation arises as soon as litigation is in contemplation and continues until final resolution of the claim.
Inspection
Disclosure is followed by inspection, whereby a party may view or obtain copies of the opponent’s disclosed documents. Inspection may be withheld for privileged material or where inspection is impracticable or disproportionate. Physical inspection may be appropriate where authenticity is in issue, or for large or annotated documents.
Need Advice on Disclosure?
Whether you are involved in a commercial dispute, professional negligence claim, or other litigation, timely and strategic advice on disclosure obligations is essential. At Carruthers Law, we provide expert representation in all aspects of civil litigation, including complex disclosure matters involving solicitors, surveyors, and other professionals.
Call Carruthers Law on 0151 541 2040 or email us for expert assistance.