It is something that I discuss quite often with instructing litigators, opponents and others in general.
It is understandable why practitioners will conflate disclosure and inspection. When one talks about disclosure, one thinks documents and the provision. In standard disclosure, the process of disclosure informs the other party of a document’s existence, while inspection allows examination or copying. Disclosure can occur without inspection, such as under legal professional privilege. If standard disclosure is inadequate, parties typically make a precise written request, seek to narrow the issue, and, if that fails, submit an evidence-supported application for specific disclosure or inspection under CPR 31.12.
Whilst there are cases where the disclosure regime of standard disclosure does not apply (small claims track and matters subject to PD 57AD, for example), understanding the role of disclosure is important for any practitioner.
The standard disclosure process
As above, lawyers and litigants using everyday court language often refer to the entire process as “disclosure,” which includes finding documents, listing them, sharing copies, and reviewing what the other side has provided. The CPR, however, uses the term more specifically. Pursuant to CPR 31.2, a party discloses a document simply by acknowledging that it exists or has existed. This step is about identifying the document, not necessarily producing it.
The N265 list of documents (or something with a similar construction) is the method of allowing a party to disclose what is available, not available because it no longer exists (and why), what exists and what exists but inspection is objected to (such as privliged documents).
Next, inspection takes place. As per CPR 31.3, the party who has received the document usually has the right to look at it. Then, CPR 31.15 provides the process. Written notice is given, inspection should generally be allowed within seven days, and if requested and reasonable copying costs are covered, a copy should typically be provided within seven days.
The right to inspect is not absolute. It can be withheld if the document is outside the disclosing party’s control, if there is a legal privilege, or if inspection would be disproportionate and procedural requirements are met. A list may still be complete even if some documents are not open to inspection.
What is standard disclosure?
Standard disclosure is a specific category, rather than a blanket invitation to request every potentially relevant document. CPR 31.6 invites parties to share only those documents they rely on, those that may negatively impact their own case or another party’s case, or support someone else’s case. Additionally, the obligation covers even unhelpful documents. It’s important to note that this requirement isn’t just about sharing materials that strengthen the disclosing party’s position; it encompasses all relevant documents within this scope.
There are three stages to disclosure:-
- Reasonable search – CPR 31.7 requires a reasonable search for documents falling within CPR 31.6(b) or (c). Reasonableness depends on the number of documents, the nature and complexity of the case, the ease and expense of retrieval, and the likely significance of what may be found.
- Control – Under CPR 31.8, the duty is limited to documents that are or have been in the party’s control: physical possession, a right to possession, or a right to inspect or take copies.
- Proportionality and case management – The court may dispense with standard disclosure, order it, or adopt another tailored form of disclosure. The actual order and any written agreement between the parties must be read before assuming that CPR 31.6 defines the task.
The practicality
There are practical points to consider, and these can arise quite often in everyday practice. This is a non-exhaustive list of practical points:-
A document is absent from the list. This is potentially a disclosure problem. The question is whether the document falls within the operative disclosure order, whether it is or was within the party’s control, and whether a reasonable search should have found it. The problem is that if the document never existed and it was not a document at the forefront of their mind, of course it wouldn’t be in the list. A sensible approach would be to indicate to the other party early and ask them to explain that in a short, signed document, as the N265 does not have a section for documents that have never existed.
A document is listed, but no copy has been provided. This is generally an inspection or production problem, not necessarily a failure to disclose. The receiving party should identify the listed document, give written notice under CPR 31.15 and request a copy, while addressing any stated objection. Quite often, parties will not specify individual documents but more broadly. One example would be medical records, but it doesn’t specify where from and what period.
A document is listed in the privileged section. The document has been disclosed, but inspection is withheld. The issue is whether the asserted right or duty to withhold inspection is valid and adequately stated. A challenge falls under CPR 31.19(5), not simply CPR 31.12. There is also the risk that a document has been provided for inspection that is privileged and should not have been disclosed. I discuss this issue in my post here.
A disclosed category is said to be too disproportionate to inspect. CPR 31.3(2) permits this position for documents in a category or class disclosed under CPR 31.6(b), provided the disclosure statement says inspection will not be permitted on proportionality grounds. The appropriate remedy may be an order for specific inspection under CPR 31.12(3). This would be an issue for Claimants to consider when the issue in dispute and the voluminous disclosure requested do not warrant the same.
A document is mentioned in a statement of case, witness statement, witness summary or affidavit. CPR 31.14 creates a separate route to inspection. The first step should normally be a focused written request identifying the passage and document; if inspection is not provided, an application may follow. In any event, it should be correct that a witness evidences the document in their statement to make it admissible.
What to do if the list is inadequate?
A specific disclosure application should focus on an identified gap, not a general claim that the opponent must have more documents. Compare the issues and disclosure order with the documents listed and produced, then explain what is missing and why it matters.
Before applying, the request should:-
- link the documents to a specific issue;
- describe them narrowly, using dates, people, accounts or subjects where possible;
- explain why they likely exist and were under the other party’s control;
- show that they fall within the disclosure order or CPR 31.6;
- identify any weakness in the search, list or response;
- suggest a proportionate solution, such as a limited search or staged disclosure; and
- set a reasonable deadline and invite discussion.
Clear correspondence can narrow the dispute, support any later application and affect costs. This reflects the emphasis on cooperation and proportionality in CPR 31.5 and Practice Direction 31A. Much of the time, documents are omitted not maliciously but simply by mistake and misunderstanding.
Specific disclosure application
CPR 31.12 allows courts to order specific disclosure or inspection, requiring respondents to disclose identified documents or conduct specified searches. A specific inspection, under CPR 31.3(2), is narrower, focusing on withholding inspection of disclosed categories as disproportionate. Practice Direction 31A states that an application can be made if disclosure is inadequate; supporting evidence and clear reasons are required.
The court considers all circumstances, especially the overriding objective, and will usually order proper compliance if inadequacy is proven.
Common mistake can include:-
- Assuming that standard disclosure applies automatically, read your directions Order
- Disclosure and inspection should not be treated as interchangeable, as the appropriate remedy depends on whether a document has been omitted from the list, access has been refused, privilege is claimed, proportionality is disputed, or the document is mentioned in evidence.
- Avoid demanding every relevant document, since CPR 31.6 is narrower than general relevance and only requires a reasonable and proportionate search.
- Not reviewing the list of documents carefully, as information about custodians, locations, date ranges, search terms and omitted categories may expose a deficiency or resolve the concern.
- Where documents are outside another party’s control, the correct procedure must be used, as pre-action disclosure, non-party disclosure and orders under CPR 31.12A have different requirements.
- Jumping straight into satellite litigation with an application when a focused request may actually acheive the outcome you desire.
- Take care with using the correct approach when it comes to documents subject to privilege.
Conclusion
Disclosure is about noting the existence of documents within the scope of the duty, while inspection is about allowing access to those documents, with certain recognised limits. Standard disclosure involves a straightforward and fair approach, including a reasonable search, a clear list, and honest disclosure. If that process isn’t enough, CPR 31.12 offers a specific remedy.
The disclosure process seems straightforward, but it is a very complicated process when one looks at the underlying features and law. This article may seem comprehensive, but I can assure you it is not. In fact, I probably spent more time attempting to simplify without losing meaning.
However, many disclosure issues can be resolved and avoided by taking care and being cooperative. CPR 31.12 should be a tool of last resort, rather than a response to the absence of disclosure or documents for inspection at the disclosure stage.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
