Disclosure – facts you may not know or have forgotten about

Personal injury lawyers may find the disclosure stage relatively straightforward if you are a Claimant (as there is usually a limited range of documents in the form of medical records, evidence regarding special damages and on occasion, regarding liability. For Defendants, disclosure will be more extensive.

For most practitioners, witness evidence will be more time consuming and complex. The process of disclosure can become so monotonous that many will over look various points.

This blog post is a helpful reminder.

Disclosure and inspection are not interchangeable

The act of disclosure is discernibly different from the act of providing copies for inspection. This is quite an important distinction.

CPR 31.2 defines disclosure to mean to disclosure that a document exists or has existed. The purpose of the disclosure list is to also to explain why a document that used to exist no longer exists.

A standard disclosure list of documents contains the following statements:-

• I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.
• I have control of the documents numbered and listed here, but I object to you inspecting them (and I object because….)
• I have had the documents numbered and listed below, but they are no longer in my control.

So when I used to undertake holiday sickness litigation, it would be quite common place for Defendants to request disclosure of particular documents. Sometimes they never existed, so the would never usually be in the list. However I would include them in a penultimate paragraph or covering letter to explain that those documents never exists.

The client may have had photographs but contemporaneously uploaded them to Facebook and deleted the originals (which contained the metadata which is relevant to when the photographs were taken). I would include the original metadata photographs in the ‘no longer in my control’ and explain why.

Undertaking an exercise to ask your client for documents that they used to have but no longer have in their control is more likely to bring to light documents that the client forgot about, rather than several months later saying “I’ve just found this document, is it important?”.

When you give the document to the other party, that is complying with inspection – not disclosing.

Within your possession or control can extend further than you think

The client doesn’t have the medical records at their home. They do not have online banking and do not keep their bank statements. Does this mean the document is not within their control?

Control will broadly mean a document they are entitled to inspect or request copies of. Medical records and bank statements most certainly fit into this category.

Where is the line drawn in respect of control if it includes documents that a party is entitled to inspect or request copies of? North Shores Ventures Limited & Another v Amstead Holdings Limited & Others [2011] EWHC 178 (CH) could suggest that the Court would exercise a factual approach to determining what is within a party’s control.

If a party is entitled to see a document, even by way of a contractual relationship but with no rights or ownership to the document, then there could be a requirement to disclose it.

There is evidenced disclosure and unevidenced disclosure

If one thinks about evidence in the context of a criminal trial (where evidence in chief is given in live evidence) a witness would be called to be give evidence about a document or piece of evidence to ensure it was ‘evidenced’.

In the context of a civil case, the witness will refer to a document within their statement and would prove the document and its contents. Contrary to popular belief, simply disclosing a document does not make it admissible at trial and if a document remains unevidenced (i.e. a witness can explain what the document is and how it can be relied on).

An unevidenced document ought not to go into the trial bundle and doing so will in accordance with PD 32 para 27.2 which states any document entered into the trial bundle and is agreed shall be admissible. The hearsay rules require the Court to consider how much weight is given to a document where a live witness cannot attest to the contents of the document as per s4 of the Civil Evidence Act 1995.

So if you have a document and you want to rely on it, you ought to evidence it properly by the appropriate witness. You can either exhibit it or, to avoid duplication of documents, you could refer to the document by its number in this list of documents with adequate description (although the former is a safer option).

If a document is disclosed and/or copy provided for inspection after the deadline, then permission from the Court is needed

There is a difference between the ongoing duty of disclosure (CPR 31.11) and the need for permission to rely on a document that was not previously disclosed and provided for inspection (CPR 31.21).

In the case of McTear & Anor v Engelhard & Ors (Rev 1) [2016] EWCA Civ 487 a party disclosed a document within a witness statement and had not previously disclosed the same. They sought permission to rely on it and in the first instance the Judge refused permission. The Court of Appeal over turned the decision. Despite the criticism of not disclosing the document had been found sooner, the witness statements were admissible at trial, the documents were not so vital to the case and the other party had plenty of time to deal with the same.

Parties must take the appropriate steps to avoid being refused permission at trial to rely on a document (unless the other party includes the document in the trial bundle, thus accepting its admissibility).

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.