Undertaking the higher rights of audience written training and assessment was strange because it didn’t accord with the skills and knowledge I have ascertained over the years of litigation and advocacy practice.
A question came up in the training sessions and it was something on the lines of the following:-
Your opponent commences with their opening speech when they refer to a document you know to be privileged, has not been disclosed or provided for inspection and is in your opponent’s client’s favour.
My instant response was “I’d rely on CPR 31.21 and prevent them from relying on it”. Apparently, the correct response was “this has triggered a collateral waiver and you seek disclosure of all related documents”.
I could understand why it was relevant but for me, from a tactical perspective, questioned why I’d want to invite further disclosure and potentially assist the Defendant in getting permission to rely on the documents in the possibility that something may come out of the collateral disclosure, when I already know that the one document is not helpful for my client.
CPR 31.21 says “a party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission“. How does this accord with litigation and advocacy? Where is it beneficial to rely on it.
CPR 31.21 – failure to disclose and/or inspect
The first point that usually causes confusion is that 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.
In holiday sickness litigation, Defendants often requested specific documents, some of which never existed. I would usually mention that in a final paragraph or covering letter, clarifying their absence. The client may have uploaded photographs to Facebook and deleted the originals, which contained important metadata about when they were taken. I would include these original photographs in the ‘no longer in my control’ section 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?”.
Ongoing duty of disclosure v CPR 31.21
It’s essential to understand that litigators often mix up their ongoing duty to disclose information with the need to allow the opposing party to inspect documents. This distinction is crucial, as compliance with disclosure obligations does not automatically grant the other party the right to rely on specific documents during the trial. Maintaining clarity on these elements plays a pivotal role in why CPR 31.21 should be utilised more often.
The ongoing duty of disclosure is as follows:-
Duty of disclosure continues during proceedings
31.11
(1) Any duty of disclosure continues until the proceedings are concluded.
(2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party.
This duty does not circumvent CPR 31.21. Quite often in litigation, I would face third-party solicitors providing late disclosure and inspection of a documents after the deadlines and shortly before trial. They would give the explanation that it had not been previously disclosed because they weren’t aware of it, but now that it had been disclosed, they complied with their overriding duty.
CPR 31.21
There is no commentary in the white book for CPR 31.21, including the latest 2025 version. I have previously written about what it means when a rule says ‘unless the court gives permission’. The case of Chartwell Estate Agents Ltd v Fergies Properties SA & Anor [2014] EWCA Civ 506, where the Court of Appeal considered what the wording within CPR 32.10 meant when it said ‘unless the court gives permission’.
In the case of McTear & Anor v Engelhard & Ors (Rev 1) [2016] EWCA Civ 487, the appellant appealed the Judge’s refusal of extensions of time related to disclosure and witness statements. The appellant disclosed witness statements 50 minutes late, which included 700 pages of documents, some not previously disclosed and therefore late. The judge denied their applications and barred their witnesses from trial, suggesting the statements were an attempt to obscure the presence of new documents.
It would therefore follow that a party who discloses and provides a document late, even if part of their ongoing duty to disclose, must seek relief from sanction.The Court of Appeal granted the appeal. Firstly, they determined that the Judge wrongly to combined the witness statements and disclosure applications. They found that the late-disclosed documents were of limited relevance, and there was no evidence of intentional obstruction by the appellants. The delay was trivial, and excluding the appellants from giving evidence was not just, especially regarding serious allegations made within the case.
They also found that the Judge also mistakenly approached the disclosure issue only as a matter of sanctions. The appellants had some justification for not producing the documents earlier, as they were recently discovered (rather than sat on them). The respondents could manage these documents at trial, and the Judge would have allowed their admission if considered separately
34. The second point that needs to be underlined in this case is that one cannot see every aspect of every case in terms only of relief from sanctions. Disclosure of documents is a case in point. CPR Part 32.11 provides that “(1) [a]ny duty of disclosure continues until the proceedings are concluded” and “(2) [i]f documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party”. These obligations do not excuse the breach of an order for disclosure that is limited in time, but in considering the extent of any permitted usage of documents that are found after such an order has expired, the court does have to take these duties into account.
46. Undoubtedly, the safest course would have been to apply for an extension of time for compliance with both disclosure orders, if necessary for relief from sanctions, and for permission to rely on the new documents. That application ought, as the judge said, to have been supported by an explanation of why the documents had not been disclosed in the first place.
47. The judge relied on CPR Part 31.21 which only provides that a “party may not rely on any document which he fails to disclose … unless the court gives permission”, but by the time of the hearing the defendants had not failed to disclose the new documents; they had served a list in respect of them.
48. The question, therefore, is whether the judge was right to treat the application in relation to the new documents as purely one for relief from sanctions. I do not think that he was. The important question was whether, in all the circumstances, the defendants were to be permitted to rely upon them at the forthcoming trial. That depended, amongst other things, on considerations including whether the claimants would have wished to rely on them, the circumstances in which they had not been disclosed before, and their relevance to the issues.
49. I accept also that the failure to produce the documents at the initial disclosure stage was a significant breach. Parties must take seriously the need to conduct proper searches for documents in response to an order for standard disclosure by a fixed date. But here there was an excuse, albeit one that was not very well explained in the 2nd application. The documents had been thought to have been destroyed, but were discovered when new counsel emphasised the need to look for them. In these circumstances, the most important question was whether the claimants could properly deal with them at the forthcoming trial. In my judgment, they could have done so. They were not very important, had probably already been for the most part in the possession of the claimants, and did not require any significant work for accountants to digest. In my judgment, the documents ought to have been admitted. I emphasise, however, that if the judge had been justified in thinking that the defendants had been trying to “bury” or disguise significant documents by exhibiting them to a witness statement rather than openly disclosing them, he might have been justified in excluding them. In my judgment, however, the judge was not right to infer impropriety from the defendants’ conduct. They did not behave correctly as I have explained, but that is a different matter.
50. The judge’s error was to regard the applications concerning the statements and the disclosure as inextricably linked. They were connected but the issues ought to have been considered separately. I have no doubt that the appropriate course was to consider the statements first. Had the judge concluded that the defendants’ witnesses should have given evidence, as I think he ought, he would also have concluded that the new documents should be admitted for the reasons I have given.
So, whilst it is correct that the application is one of relief from sanction, the Court of Appeal recognised in certain circumstances that the breach is not intentional, and therefore, the focus is different. In McTear, the appellant thought the documents no longer existed. So when the list was created, the disclosure was correct. However, their ongoing duty was to disclose. The focus was, therefore, more focused primarily in all the circumstances could the trial proceed with the new documents. It would be different if the appellant knew or ought to have known the documentation existed.
Where should a party utilise CPR 31.21?
When discussing a party ‘utilising’ CPR 31.21, it’s important to note that it’s not mandatory. The challenge lies in that most litigators compile a trial bundle containing all documents, which, per PD 32 para 27.2, is regarded as accepting those documents as admissible. Consequently, if a disclosed document is included in the bundle, its admissibility under CPR 31.21 may exceed the court’s jurisdiction. If there’s a refusal to include a document in an agreed trial bundle, CPR 31.21 should be cited.
Parties should consider that such applications under CPR 31.21 are, for all intents and purposes, a relief application, that consideraition should be given to what the Court of Appeal said in Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906:-
43. The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective. Representatives should bear this important obligation to the court in mind when considering whether to advise their clients to adopt an uncooperative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions. It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case. If the offending party ultimately wins, the court may make a substantial reduction in its costs recovery on grounds of conduct under rule 44.11. If the offending party ultimately loses, then its conduct may be a good reason to order it to pay indemnity costs. Such an order would free the winning party from the operation of CPR rule 3.18 in relation to its costs budget.
Parties may choose to indicate to the other party that they need permission from the Court without consenting or objecting, leaving the decision to the Court. For example, in McTear, if documents are deemed insignificant and were initially reported as lost but later found, the Court may allow them in. Conversely, if the documents are highly relevant, never disclosed, and could compromise the trial, the Court may be less inclined to admit them.
In considering late disclosures in litigation, the Court must weigh whether one party is being opportunistic or if the delayed information poses a genuine risk of causing significant detriment. This includes assessing whether the party receiving the documents would have made different decisions if they had been disclosed on time. There is also the possibility that the affected party could be compensated through costs, potentially allowing for a resolution without going to trial.
Litigators must carefully consider these factors when invoking CPR 31.21 to object to the other party receiving relief. The key situations arise when evidence is highly prejudicial but does not entirely undermine a party’s case. If the disclosure could have led to an earlier resolution, its late introduction may jeopardise the case.
Ultimately, the Court will undertake a balancing act, and the party wishing to rely on the disputed document must be mindful of not investing undue time and resources in challenging a piece of evidence that may not be central to the core issues to be decided.
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.