PastPaperHero | Evidence and disclosure - Orders for disclosure and specific disclosure

Learning Outcomes

This article explains the court’s powers to tailor disclosure beyond standard disclosure and when and how orders for disclosure—especially specific disclosure under CPR 31.12—are made, including:

Standard disclosure vs specific disclosure (CPR 31.6 and CPR 31.12) and other disclosure orders under the CPR 31.5 “menu”.
Duty of reasonable search (CPR 31.7) and the continuing duty to disclose (CPR 31.11).
Structure of disclosure lists (Form N265) and disclosure statements.
Inspection rights and timescales (CPR 31.3 and CPR 31.15).
Criteria and evidential requirements for specific disclosure or specific inspection, and the court’s application of proportionality and the overriding objective.
Part 23 application procedure (service, time limits, and draft orders), costs consequences, and sanctions for non‑compliance.
Privilege (legal advice, litigation, and without prejudice) and challenges to privilege (CPR 31.19) as they affect inspection.
Electronic disclosure principles (PD 31B) and the PD 57AD regime in the Business and Property Courts, including keyword searches, custodians, and data preservation.
Preferability of pre‑action disclosure (CPR 31.16) or non‑party disclosure (CPR 31.17) over specific disclosure against a party.

SQE1 Syllabus

For SQE1, you are required to understand the court’s powers and procedures for disclosure under CPR Part 31, including orders for disclosure and specific disclosure, with a focus on the following syllabus points:

The court’s general powers to make disclosure directions (CPR 31.5), including the “menu” of orders.
Standard disclosure (CPR 31.6) and duty of reasonable search (CPR 31.7).
Specific disclosure and inspection (CPR 31.12), and applications procedure under Part 23 and PD 23A.
Right of inspection (CPR 31.3) and inspection timescales (CPR 31.15); continuing duty to disclose (CPR 31.11).
Privilege and challenges to privilege (CPR 31.19), including redaction and limited waiver.
Electronic disclosure (PD 31B) and disclosure in the Business and Property Courts (PD 57AD).
Pre‑action disclosure (CPR 31.16) and non‑party disclosure (CPR 31.17).
Proportionality and the overriding objective (CPR 1.1) as applied to disclosure orders.
Costs consequences and sanctions for non‑compliance (CPR Parts 3 and 44).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which CPR part governs applications for specific disclosure?
1. CPR Part 24
2. CPR Part 25
3. CPR Part 31
4. CPR Part 36
A party applying for specific disclosure must satisfy the court that the requested documents are:
1. Potentially relevant and easy to locate.
2. Necessary for disposing fairly of the claim or saving costs.
3. Mentioned in the opponent's statement of case.
4. Not covered by legal professional privilege.
True or false? An order for specific disclosure can require a party to search for documents beyond those falling within standard disclosure.

Introduction

Standard disclosure under CPR 31.6 is often the starting point for documentary exchange in fast‑track and multi‑track proceedings, but the Rules give the court flexible, active case management powers to control disclosure so that it serves the overriding objective—dealing with cases justly and at proportionate cost (CPR 1.1 and 1.4). In multi‑track cases the court may adopt a “menu” of disclosure options at the case management conference (CMC) (CPR 31.5), departing from standard disclosure where appropriate. Alongside these menu orders, the court can make targeted “orders for disclosure,” including specific disclosure (or specific inspection), pre‑action disclosure, and non‑party disclosure. Understanding when each is used, the criteria the court applies, and the mechanics of applications is essential for effective case management.

Key Term: Standard Disclosure
The duty under CPR 31.6 requiring a party to disclose only: (a) the documents on which they rely; (b) the documents which adversely affect their own case, adversely affect another party’s case, or support another party’s case; and (c) any documents required by a relevant practice direction.

Key Term: Control
Under CPR 31.8, a party has control of a document if: (a) it is or was in their physical possession; (b) they have or had a right to possession of it; or (c) they have or had a right to inspect or take copies of it.

Court Orders Relating to Disclosure

The court’s case management powers (CPR Part 3) are frequently used to shape disclosure so it is proportionate to the value and complexity of the dispute. When giving directions for disclosure (CPR 31.5), particularly at the first CMC, the court may order:

Dispensing with disclosure entirely.
Disclosure confined to documents on which a party relies, coupled with targeted requests for specific disclosure.
Disclosure on an issue‑by‑issue basis.
Disclosure limited or extended to particular custodians, date ranges, repositories, or search terms (especially for electronic documents).
Staged disclosure, so that the costliest searches are only undertaken if earlier stages show they are justified.
“Train of enquiry” disclosure (rarely ordered), requiring disclosure of documents that may lead to enquiries resulting in supportive or adverse material.

In multi‑track claims, parties must prepare a disclosure report (CPR 31.5(3)), meet at least seven days before the first CMC to discuss a proportionate proposal, and file agreed proposals where possible. The court then tailors directions to the needs of the case.

Small claims follow a different model; parties ordinarily file and serve copies of all documents they will rely on no later than 14 days before the final hearing. CPR 31 does not usually apply.

Standard Disclosure Recap

Where standard disclosure is ordered, the disclosing party must undertake a reasonable search (CPR 31.7) for documents falling within CPR 31.6. Reasonableness depends on:

The number of documents involved.
The nature and complexity of the proceedings.
The ease and expense of retrieval.
The significance of any likely documents.

Parties then serve a list (usually on Form N265) identifying documents in a convenient order, often by date and category, and stating:

Which documents are within control and available for inspection.
Which are within control but inspection is objected to (with reasons, typically privilege).
Which documents were once in control but no longer are, with an explanation of what happened to them.

The list must be accompanied by a disclosure statement confirming understanding of the duty and the extent of the search. The duty to disclose continues until proceedings are concluded; supplemental lists must be served when new documents come to light (CPR 31.11).

Key Term: Inspection
Under CPR 31.3, a party to whom a document has been disclosed has the right to inspect it, except where: (a) the document is no longer in the disclosing party’s control; (b) the disclosing party has a right or duty to withhold inspection (e.g., privilege); or (c) inspection of a category or class would be disproportionate. Where inspection is permitted, CPR 31.15 requires it to be facilitated within seven days of a written request, either by arranging inspection or providing copies upon payment of reasonable copying costs.

Specific Disclosure (CPR 31.12)

Standard disclosure may be insufficient in practice—for example, where a party has failed to search adequately, or where particular classes of documents outside standard disclosure are necessary to resolve a key issue. CPR 31.12 empowers the court to order “specific disclosure” or “specific inspection.” These are targeted orders to compel:

Disclosure of documents or classes of documents specified in the order.
A search for such documents to the extent stated in the order.
Disclosure of any documents found as a result of that search.

An order for specific inspection requires the party to permit inspection of a document referred to in CPR 31.3(2).

Key Term: Specific Disclosure
An order requiring a party to disclose documents specified in the order, or to carry out a search for such documents and disclose any found. It targets defined gaps in disclosure and may extend the search beyond standard disclosure where proportionate.

Purpose and Grounds

Specific disclosure is used to ensure the parties and the court have the documents necessary to deal with the case justly and proportionately. Practice Direction 31A para 5 emphasises that the court examines all the circumstances; where a party has failed adequately to comply with disclosure obligations (for example, by an insufficient search), the court will usually make such orders as are necessary to secure compliance.

Common grounds include:

Narrowing issues by obtaining documents directly relating to pleaded disputes.
Rectifying an inadequate or incomplete search (e.g., missing date range, custodians, repositories).
Securing disclosure of defined categories (e.g., internal testing reports, board minutes, email threads) critical to liability or quantum.
Requiring search parameters to be expanded to cover specific custodians, systems, or time windows in a proportionate way.

The court applies the overriding objective. Necessity and proportionality guide the intervention, balancing the likely utility of the documents sought against burden and cost. A broad “fishing expedition”—requests not tied to the issues—is likely to be refused.

Procedure for Application

Specific disclosure is sought by interim application under Part 23, usually after a failed attempt to resolve the issue by correspondence:

Write first to the opponent, explaining precisely what is missing and why it should be disclosed. Propose reasonable search parameters (date ranges, custodians, repositories, keywords).
If unresolved, file an application notice (Form N244) specifying the order sought and serve it at least three clear days before the hearing (PD 23A).
Attach a draft order that defines the categories and search scope with sufficient specificity to be enforceable.
Support the application with a witness statement setting out:
- The link between the documents sought and the pleaded issues.
- Why the materials are necessary to dispose fairly of the claim or to save costs.
- Grounds for believing the documents exist and are within the respondent’s control.
- Why the requested search is reasonable and proportionate, including technical or cost considerations for ESI.

Applications may be heard by telephone or video where suitable (PD 23A). The court has wide case management discretion as to costs (CPR 44.2).

Court's Discretion

The court decides by reference to the overriding objective and proportionality. Factors include:

Relevance and specificity: Are the categories clearly defined and tied to pleaded issues?
Necessity: Would the order assist fair disposal or save costs compared with alternatives (e.g., Part 18 requests for further information)?
Burden and cost: Is the likely search cost justified by the potential probative value?
Alternative routes: Could pre‑action disclosure or non‑party disclosure be more appropriate?
Conduct: Has a party failed to comply adequately with previous disclosure orders?

Courts are reluctant to impose excessive burdens out of proportion to the case’s importance or value. In practice, tailored orders—limiting custodians, date ranges, and search terms—are preferred over blanket obligations. Equally, where a party’s disclosure has clearly fallen short, the court may order expanded searches with firm deadlines and, if needed, “unless” sanctions to ensure compliance.

Worked Example 1.1

Alpha Ltd is suing Beta Ltd for breach of contract regarding the supply of allegedly defective components. Alpha disclosed its quality control reports but Beta suspects further internal testing reports exist that were not disclosed under standard disclosure, which might reveal known issues prior to supply. Beta has requested these specific reports, but Alpha refuses, claiming they are not relevant or are too burdensome to locate. What should Beta Ltd do?

Answer:
Beta Ltd should make an interim application to the court under CPR 31.12 for specific disclosure of the internal testing reports. Beta will need to file an application notice (N244) supported by a witness statement explaining why these reports are relevant (e.g., to show Alpha’s prior knowledge of defects), necessary for fairly disposing of the issue of liability, and why it is proportionate to order their disclosure. Beta should specify the likely date range or scope of the reports sought.

Relationship with Privilege

Disclosure does not equate to inspection. Even if the court orders specific disclosure or specific inspection, inspection may be withheld where a valid claim to privilege exists (CPR 31.3 and 31.19). The disclosing party must identify any privileged documents in their list and state the basis of privilege. Types of privilege include:

Legal advice privilege—confidential communications between client and lawyer for the purpose of giving or receiving legal advice.
Litigation privilege—confidential communications between client, lawyer, or third parties (e.g., experts, witnesses) for the dominant purpose of obtaining information or advice in reasonably contemplated or ongoing litigation.
Without prejudice privilege—genuine settlement communications.

Privilege can be challenged by a Part 23 application under CPR 31.19. The court may inspect the documents to determine the claim and can direct an appropriately redacted inspection if only parts are privileged. Parties must also consider redaction of irrelevant, sensitive content in otherwise disclosable documents, explaining the basis for redaction.

Ethically, if privileged material is inadvertently disclosed, you should not exploit it; full and frank conduct requires notifying the opposing party and addressing the mistake in line with professional obligations.

Key Term: Privilege
A right to withhold inspection (and sometimes disclosure) of confidential documents, primarily legal advice privilege, litigation privilege, and without prejudice privilege. A valid claim prevents inspection, but the document’s existence is still ordinarily disclosed.

Worked Example 1.2

Following the order in Worked Example 1.1, Alpha Ltd discloses the existence of internal testing reports but claims litigation privilege over them, arguing they were prepared when litigation was contemplated. Beta Ltd believes the reports were routine quality checks prepared before litigation was a real prospect. What is Beta's next step?

Answer:
Beta Ltd can challenge Alpha Ltd's claim to litigation privilege. Beta could make a further application to the court under CPR 31.19, asking the court to determine whether the claim to privilege is properly made. Beta would need to provide evidence supporting its belief that the reports were created for routine purposes, not predominantly for litigation. The court might inspect the documents itself to decide the issue.

Electronic Disclosure

Applications for specific disclosure often concern electronically stored information (ESI). Practice Direction 31B guides parties on ESI: they should discuss categories of ESI, systems and storage, and tools/techniques to reduce burden, such as:

Limiting searches to particular custodians, systems, and date ranges.
Agreed keyword searches and software tools (including deduplication).
Sampling and staging to test utility before deeper searches.
Approaches to identifying privileged material and handling inadvertent disclosure.
Formats for exchange and inspection.

In the Business and Property Courts, PD 57AD (which superseded the pilot PD 51U) prescribes models of disclosure. Parties must preserve relevant data, complete a Disclosure Review Document, and adopt the appropriate model. Whether under PD 31B or PD 57AD, the court will apply the overriding objective and proportionality to any request for specific disclosure of ESI.

Revision Tip

Link any request for specific disclosure to pleaded issues and explain how the documents will help prove or disprove a factual allegation relevant to an element of the claim or defence. Be precise; avoid broad, unfocused requests. For ESI, propose practical, proportionate search parameters.

Pre‑Action and Non‑Party Disclosure (Related Orders)

Although distinct from specific disclosure, pre‑action and non‑party disclosure orders are closely related case‑management tools and often considered where targeted material is needed to resolve issues or prepare a proportionate case. They can be used instead of or in addition to a specific disclosure application.

Pre‑action disclosure (CPR 31.16): the court may order likely parties to anticipated proceedings to disclose documents where:
- The respondent is likely to be a party to subsequent proceedings and the applicant is also likely to be a party.
- If proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents sought.
- Disclosure before proceedings are started is desirable to dispose fairly of anticipated proceedings, to assist resolution without proceedings, or to save costs.
Non‑party disclosure (CPR 31.17): the court may order a non‑party to disclose documents where:
- The documents sought are likely to support the applicant’s case or adversely affect the case of one of the parties.
- Disclosure is necessary to dispose fairly of the claim or to save costs.

Applications are made on N244 with a supporting witness statement and a draft order specifying categories, time, and place for disclosure and inspection. Where the request targets records held by third parties (e.g., contractors, auditors, banks), non‑party disclosure may be more effective than seeking specific disclosure from an opponent who does not hold those documents.

Worked Example 1.3

Gamma Plc is considering proceedings against Delta Ltd for negligent design. Gamma believes Delta’s insurer’s loss adjuster prepared a report shortly after the incident that would clarify causation. Delta refuses to provide it, saying proceedings have not yet been issued. How should Gamma proceed?

Answer:
Gamma should seek pre‑action disclosure under CPR 31.16 against Delta if the report would fall within Delta’s standard disclosure once proceedings are issued and disclosure before proceedings would assist fair disposal or save costs. If the report is held by the insurer/loss adjuster and not in Delta’s control, Gamma should consider a non‑party disclosure application under CPR 31.17 against the insurer or adjuster, showing the report is likely to support Gamma’s case or adversely affect Delta’s case and that disclosure is necessary to dispose fairly of the claim or save costs.

Worked Example 1.4

In a contractual claim, the claimant suspects a subcontractor (not a party) holds calibration logs necessary to test the defendant’s performance. The defendant says it doesn’t have those logs. What is the most appropriate application?

Answer:
A non‑party disclosure application under CPR 31.17 against the subcontractor. The claimant’s evidence should show the logs are likely to support its case or adversely affect the defendant’s case, and disclosure is necessary for fair disposal or to save costs. If the defendant has a right to obtain those logs (i.e., they are within the defendant’s “control”), specific disclosure against the defendant may be appropriate instead.

Sanctions and Costs

Where a party fails to comply with disclosure directions or a specific disclosure order, the court may impose sanctions under CPR Part 3, including “unless” orders, debarring a party from relying on late‑disclosed evidence, or, in serious cases, striking out part or all of a statement of case (CPR 3.4). Relief from sanctions is assessed under CPR 3.9 with reference to the seriousness/significance of the breach, reasons for it, and all the circumstances, including the need for efficient, proportionate litigation and enforcement of rules and orders.

Costs of applications follow the court’s discretion (CPR 44.2). Successful applicants typically recover their costs of the application; however, if an application was unnecessary or disproportionate, the court may make no order or even order the applicant to pay costs.

Key Point Checklist

This article has covered the following key knowledge points:

The court actively tailors disclosure to the needs of the case using CPR 31.5 menu orders, not limited to standard disclosure.
Standard disclosure (CPR 31.6) requires a reasonable search (CPR 31.7), a list (usually N265), and a disclosure statement, with a continuing duty (CPR 31.11).
Specific disclosure (CPR 31.12) is a targeted remedy directing disclosure of defined documents, expanded searches, or specific inspection where proportionate and necessary for fair disposal or cost savings.
Applications for specific disclosure use Part 23 procedure: clear specification of categories, evidence of relevance and proportionality, and a draft order; service is at least three clear days before the hearing.
The court exercises discretion by reference to relevance, necessity, and proportionality, and avoids broad fishing expeditions.
Inspection rights (CPR 31.3, 31.15) are separate from disclosure; inspection may be withheld due to privilege or proportionality.
Privilege claims can be challenged under CPR 31.19; the court may inspect documents and order redaction or limited inspection where appropriate.
Electronic disclosure is governed by PD 31B; in Business and Property Courts, PD 57AD sets structured models and requires a Disclosure Review Document.
Pre‑action disclosure (CPR 31.16) and non‑party disclosure (CPR 31.17) are related orders often used to obtain key documents before or outside party control.
Non‑compliance with disclosure orders may lead to sanctions (including unless orders and strike‑out) and adverse costs orders.

Key Terms and Concepts

Standard Disclosure
Control
Specific Disclosure
Privilege
Inspection

Evidence and disclosure - Orders for disclosure and specific...