Evidence and disclosure - Pre-action and non-party disclosur...

Learning Outcomes

This article explains the principles and procedures relating to pre-action disclosure and non-party disclosure within the framework of the Civil Procedure Rules (CPR). You will learn the circumstances in which these disclosure applications can be made, the criteria that must be satisfied, and the evidence required. Understanding these mechanisms is essential for obtaining relevant documents before proceedings commence or from individuals not directly involved in the litigation, thereby enabling effective case assessment and preparation for the SQE1 assessments. It also develops the ability to distinguish PAD from other tools (such as specific disclosure, witness summonses, pre-action inspection of property, subject access requests, and Norwich Pharmacal orders), to identify when each route is appropriate, and to draft focused, proportionate applications that respect privilege and confidentiality. You will appreciate the court’s emphasis on proportionality, limits on “fishing expeditions,” the different thresholds (“desirable” v “necessary”), costs and compliance obligations for respondents and non-parties, and the interaction with electronic disclosure.

SQE1 Syllabus

For SQE1, you are required to understand the rules governing disclosure, including specific types like pre-action and non-party disclosure, and to know when and how these applications can be made and their potential impact on case strategy and costs, with a focus on the following syllabus points:

• The purpose and scope of pre-action disclosure under CPR 31.16.
• The conditions and procedure for applying for pre-action disclosure.
• The purpose and scope of non-party disclosure under CPR 31.17.
• The conditions and procedure for applying for non-party disclosure.
• The court's discretion and considerations in granting these types of disclosure orders.
• The strategic implications of using pre-action and non-party disclosure in civil litigation.
• The limits of these powers, including privilege, confidentiality, and proportionality.
• Costs consequences, including who pays the costs of an application and of compliance.
• How PAD/NPD sits with pre-action protocols, specific disclosure during proceedings, and the Business and Property Courts disclosure regime.
• Practical drafting and case management, including defining precise classes of documents and managing electronic documents proportionately.

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.

1. Under which CPR rule would a potential claimant apply for disclosure from a potential defendant before issuing proceedings?
   1. CPR 31.3
   2. CPR 31.6
   3. CPR 31.16
   4. CPR 31.17
2. Which of the following is NOT a condition for obtaining an order for pre-action disclosure?
   1. The respondent is likely to be a party to subsequent proceedings.
   2. Disclosure before proceedings start is desirable to dispose fairly of the anticipated proceedings.
   3. The documents sought are likely to support the applicant's case.
   4. The applicant is likely to be a party to subsequent proceedings.
3. An application for non-party disclosure can be:
   1. Only before proceedings have started.
   2. Only against a party likely to be joined later.
   3. Against any person not party to the proceedings, once proceedings have started.
   4. Only if the non-party consents.

Introduction

Disclosure plays a key role in civil litigation, ensuring that parties have access to relevant evidence to properly plead their case and understand their opponent's position. While standard disclosure occurs after proceedings have commenced, the Civil Procedure Rules (CPR) provide mechanisms for obtaining documents earlier or from individuals outside the direct litigation. This article focuses on two such mechanisms: pre-action disclosure (PAD) under CPR 31.16 and non-party disclosure (NPD) under CPR 31.17. Understanding the requirements, procedures, strategic uses and limits of PAD and NPD is essential for effective case preparation and management.

Pre-action powers must be seen alongside the Practice Direction on Pre-Action Conduct and Protocols and any relevant protocol for the dispute. Protocols already require early exchange of “key documents” to facilitate settlement and narrow issues. PAD is not a default substitute for protocol compliance, and courts will not entertain overly broad or speculative requests. Similarly, once proceedings are under way, specific disclosure under CPR 31.12 against a party is usually the first port of call; NPD is reserved for necessary and targeted requests to non-parties.

Key Term: Pre-action disclosure
A procedure under CPR 31.16 allowing a person who is likely to be a party to future proceedings to apply to the court for an order requiring another likely party to disclose specified documents or classes of documents before a claim form is issued.

Key Term: Standard disclosure
The principal disclosure test under CPR 31.6 requiring disclosure only of documents a party relies on, documents which adversely affect its own or another party’s case, documents which support another party’s case, and any required by a relevant practice direction.

Pre-Action Disclosure (PAD)

CPR 31.16 allows the court to order disclosure of documents before proceedings have started. This is a valuable tool but is granted only under specific circumstances. PAD is confined to likely future parties and to documents which would fall within the standard disclosure test if litigation had begun. The court’s focus is whether a targeted order at the pre‑action stage is desirable to facilitate fairness, resolution or cost savings, without permitting speculative trawls through an opponent’s files.

Grounds for Pre-Action Disclosure

The court has discretion to make an order for PAD only where all of the following conditions are met (CPR 31.16(3)):

a) The respondent is likely to be a party to subsequent proceedings.
b) The applicant is also likely to be a party to those proceedings.
c) If proceedings had started, the respondent’s duty by way of standard disclosure would extend to the documents or classes of documents of which the applicant seeks disclosure (see CPR 31.6).
d) Disclosure before proceedings have started is desirable in order to achieve one or more of the following:
i) dispose fairly of the anticipated proceedings;
ii) assist the dispute to be resolved without proceedings; or
iii) save costs.

“Likely” here is a practical assessment: the court need not be certain that proceedings will be issued or that the respondent will definitely be a party, but there must be a real likelihood—more than a mere possibility. Condition (c) prevents PAD from being used to obtain documents outside the standard disclosure test or to pursue “train of enquiry” disclosure without limit. The “desirable” requirement gives the court a wide discretion to balance benefits against burdens; the application must be focused and proportionate, not a fishing expedition to find a claim or identify a new defendant (other routes, such as Norwich Pharmacal orders, may be relevant for identifying wrongdoers).

Courts pay close attention to the pre-action context. If a relevant protocol requires exchange of key documents and that has not been attempted, the court may refuse PAD or confine any order to what should already have been provided. Conversely, where targeted documents would clarify liability, causation or quantum and might facilitate early resolution or properly framed pleadings, PAD is more readily justified.

Procedure for PAD Application

An application for PAD is made under CPR Part 23. It must be supported by evidence, usually in a witness statement, setting out:

• The nature of the anticipated claim and the likely parties, with enough detail for the court to understand the issues.
• The basis on which the respondent and applicant are “likely to be parties.”
• The specific documents or narrow classes sought. Precision matters: limit by custodian, date range, subject matter, or file types, and explain why they would fall within standard disclosure.
• Why disclosure now is desirable to dispose fairly of the proceedings, assist resolution without litigation, or save costs (for example, enabling a party to plead with proper particularity, to engage in ADR realistically, or to avoid unnecessary expert evidence).
• The connection to any pre-action protocol steps already taken, including efforts to obtain the documents voluntarily and any outstanding disputes.
• Proportionality, including the estimated burden and proposed practicalities for electronic documents and inspection (see PD 31B for electronic disclosure considerations).

The application notice (form N244), draft order, and supporting evidence are served on the respondent and ordinarily on any other likely parties who may be affected. The application should be issued in the court where it is likely the claim will be started; if that is unclear, any suitable County Court hearing centre or the High Court may be used, but the court will consider venue. Applications are usually on notice. Orders commonly:

• Specify the documents or classes to be disclosed, often defined by topic, date and custodian.
• Require the respondent to identify any documents no longer in its control and what has happened to them.
• Preserve the respondent’s entitlement to withhold privileged documents (with a short description sufficient to assert privilege appropriately).
• Set time and method for disclosure/inspection (e.g., provision of copies within 14 days).
• Include confidentiality protections where appropriate (e.g., redaction, inspection by legal representatives only, or a confidentiality club).

Costs are in the court’s discretion. Generally, costs follow the event (the unsuccessful party pays), but the court may also order the applicant to bear reasonable compliance costs, especially where a significant search is required or where the order confers limited benefit in the round. Where PAD is refused because the applicant sought overly broad or premature disclosure, adverse costs orders are likely.

Strategic Use of PAD

Obtaining PAD can significantly influence your pre-action strategy. It might:

• Provide essential evidence to confirm whether a viable claim exists or to refine the issues and pleadings.
• Enable an informed, proportionate approach to ADR and settlement.
• Avoid wasted costs on experts or preliminary hearings by clarifying key factual matters early.
• Prevent later delay and disputes about disclosure scope, especially for discrete document sets (e.g., a single contract version, a contemporaneous report, or a short email thread critical to liability).

Equally, PAD is not a cure‑all. It will rarely be appropriate to seek wide-ranging internal communications or to trawl archives where protocols already require “key documents” to be exchanged. Consider alternatives (e.g., a focused protocol request; pre-action inspection of property under CPR 25.1 where condition/physical evidence is in issue; data subject access requests where personal data is needed) and be ready to propose proportionate, time-limited searches using agreed keywords or custodians for electronic material.

Worked Example 1.1

Ahmed believes his former employer, TechCorp Ltd, unfairly dismissed him based on fabricated allegations of poor performance. Before incurring the costs of issuing a civil claim, Ahmed wants sight of internal emails and performance reviews which he suspects will show the real reason for his dismissal was redundancy. Can Ahmed apply for PAD?

Answer:
PAD under CPR 31.16 is only available in the High Court or County Court, not for Employment Tribunal claims. If Ahmed intends to issue a County Court/High Court claim (for example, wrongful dismissal in contract), PAD may be available, provided both he and TechCorp are likely parties and the documents sought (e.g., specific performance appraisals or a defined email thread over a short period) would fall within standard disclosure. The application must be narrowly framed and show that pre‑action disclosure is desirable to dispose fairly of the proceedings, assist resolution, or save costs. If the contemplated claim is solely for unfair dismissal in the Employment Tribunal, PAD is not available; he should instead consider making targeted protocol requests (if applicable), a data subject access request for personal data, or seeking directions in the Tribunal once proceedings are issued.

Worked Example 1.2

In a construction dispute, BuildCo Ltd claims that delays were caused by faulty materials supplied by Supplier Ltd (the Defendant). BuildCo suspects that Supplier Ltd was aware of potential issues with the materials because Supplier Ltd commissioned independent testing from TestLab Ltd (a non-party) before supplying them to BuildCo. BuildCo applies for NPD against TestLab Ltd for the test results. Is this likely to succeed?

Answer:
BuildCo's application has a good chance of success. The test results held by TestLab Ltd are likely to support BuildCo's case (if they show defects) or adversely affect Supplier Ltd's case. Disclosure appears necessary for fair disposal, as the test results provide objective evidence about material quality at the relevant time and may avoid duplicative testing and cost. The order should be tightly framed (e.g., the specific report(s) and supporting data for the product batch and date range). BuildCo must serve the application on both TestLab Ltd and Supplier Ltd and be prepared to meet TestLab’s reasonable costs of compliance.

Non-Party Disclosure (NPD)

Once proceedings are underway, parties may realise that key documents are held not by their opponent, but by a third party. CPR 31.17 provides the mechanism to obtain disclosure from such non-parties. NPD is exceptional and is not a backdoor to broad disclosure beyond what is necessary to resolve the issues fairly.

Key Term: Non-party disclosure
A procedure under CPR 31.17 allowing a party to existing court proceedings to apply for an order requiring a person or organisation who is not a party to the proceedings to disclose specified documents or classes of documents.

Grounds for Non-Party Disclosure

The court may make an order for NPD only where both of the following conditions are met (CPR 31.17(3)):

a) The documents sought are likely to:
i) support the case of the applicant; or
ii) adversely affect the case of one of the other parties to the proceedings; and
b) Disclosure is necessary in order to dispose fairly of the claim or to save costs.

“Likely” does not require certainty; it suggests a real prospect that the documents will have probative value. “Necessary” sets a higher bar than “useful” or “convenient”: the court must be satisfied that fairness or cost saving genuinely requires disclosure from the non-party, and that the same information cannot be obtained proportionately from the parties themselves or by other case management steps (for example, by ordering a party to procure documents within its control, or by directing supplemental party disclosure).

NPD cannot be used to circumvent privilege. Legal professional privilege and without prejudice privilege still apply; a non-party’s confidential documents may be protected by appropriate order terms (redaction, confidentiality undertakings) rather than by refusing disclosure altogether, but where privilege is properly claimed, the court cannot order inspection.

Procedure for NPD Application

Similar to PAD, an application for NPD is made under CPR Part 23 and must be supported by evidence. The application notice and evidence must be served on the non-party respondent and ordinarily on all other parties to the litigation. The evidence should explain:

• The precise documents or narrow classes sought, and why they are likely to support the applicant’s case or adversely affect another party’s case.
• Why disclosure is necessary for fair disposal or to save costs, including why it is not feasible or proportionate to obtain the material from the parties.
• Proportionality and practicality (e.g., the burden on the non-party, search parameters for electronic material, and time/cost estimates).

The court will weigh the applicant’s need for the documents against the burden, intrusion, or confidentiality concerns for the non-party, and the overall proportionality. The non-party has the right to be heard and may evidence the burden or sensitivity of the request. If an order is made, it will:

• Specify the documents or classes to be disclosed.
• Require the non-party to identify documents no longer in its control and what happened to them.
• Preserve privilege and permit appropriate redactions for irrelevance or privacy, subject to a brief description to explain the basis.
• Set time/method for disclosure and, where appropriate, confidentiality protections.

A non-party who is ordered to disclose documents is entitled to its reasonable costs of compliance, including identifying, retrieving and producing the documents. The court may require the applicant to pay those costs (or pay into court on account) and will also deal with the costs of the application in the usual way (costs follow the event, subject to discretion).

Note that Part 31 does not apply to claims on the small claims track. Non-party disclosure under CPR 31.17 is therefore generally not available once a claim is allocated to the small claims track; other routes (such as a witness summons to produce documents at a hearing) may be more appropriate in that context.

Strategic Use of NPD

NPD is essential when key evidence (e.g., a pre-incident maintenance report, third-party test results, impartial data logs, CCTV, or bank records) is held by someone outside the litigation. It allows parties to access information that might otherwise remain hidden, potentially corroborating their own case or undermining their opponent's. Proper use focuses on narrow document sets that fill critical gaps and would otherwise require costly or duplicative steps (such as retesting or an additional expert report). Counsel should always consider whether comparable material can be obtained from a party under its control, or whether case management directions can avoid the need for NPD.

Worked Example 1.3

A claimant alleges they slipped on a supermarket floor. The defendant discloses its in-store incident report but says any CCTV is managed by an external security contractor, SecureEyes Ltd (a non-party). The defendant says it does not have copies. The claimant seeks the CCTV from SecureEyes Ltd.

Answer:
An NPD application focused on the relevant CCTV clip (e.g., footage of the aisle and entrance for a defined period around the incident) is likely to succeed. The footage is likely to support the claimant’s case (or adversely affect the defendant’s case) and is necessary for fair disposal or cost saving (for example, it may obviate extensive witness evidence about the state of the floor). The order should specify the camera, date, and time window, and may include confidentiality undertakings and cost arrangements for the contractor’s retrieval.

Worked Example 1.4

A software company suspects a former consultant misused its confidential code in a rival’s product. The company issues proceedings against the consultant for breach of confidence and seeks disclosure from CloudHost Inc., a cloud storage provider (non-party), of the consultant’s repository logs and access records.

Answer:
The company must show that the targeted logs are likely to support its case or adversely affect the consultant’s case, and that obtaining them is necessary for fair disposal or cost saving. If the request is narrowly drawn (e.g., specific repository IDs, commit and access logs for a tight period), the court may grant NPD, coupled with strict confidentiality protections and cost-shifting to the applicant. If the request is broad (e.g., “all account data for three years”), it risks refusal as disproportionate and intrusive. The court will also consider whether similar material is within the consultant’s control and could be obtained from the consultant by specific disclosure first.

Exam Warning

Remember the distinct tests for PAD and NPD. For PAD (CPR 31.16), the focus is on whether disclosure is desirable for specific pre-action aims and relates to documents covered by standard disclosure. For NPD (CPR 31.17), the focus is on whether disclosure is necessary for fair disposal/saving costs and whether the documents are likely to support/adversely affect a case. Common pitfalls include:

• Confusing PAD with Norwich Pharmacal relief (which concerns identifying or obtaining information from a third party involved in wrongdoing).
• Seeking unduly wide “fishing” orders or train‑of‑enquiry disclosure.
• Overlooking privilege or proposing orders that do not accommodate confidentiality.
• Using NPD to sidestep a party’s disclosure obligations rather than first seeking specific disclosure against that party.
• Forgetting that Part 31 does not apply on the small claims track and that PAD is a civil court mechanism, not available for tribunal claims.

Key Differences and Considerations

While both PAD and NPD facilitate access to documents, they operate at different stages and have different requirements:

• Timing: PAD is pre‑proceedings; NPD is during proceedings.
• Target: PAD targets a likely future party; NPD targets a current non‑party.
• Test: PAD requires disclosure to be desirable for specific pre‑action aims; NPD requires disclosure to be necessary for fair disposal or to save costs.
• Scope: PAD is limited to documents falling within standard disclosure; NPD is limited to documents likely to support/adversely affect a party’s case.
• Forum and availability: PAD is available only in the High Court/County Court; it is not available for tribunal claims. Once a case is in the small claims track, Part 31 (including NPD) generally does not apply.
• Costs and compliance: On PAD and NPD, costs are discretionary. Non-parties are entitled to their reasonable compliance costs; applicants should be prepared to fund targeted searches, especially for electronic material.

In both applications, the court retains a wide discretion. It will always consider proportionality, the burden on the respondent/non-party, the continuing duties regarding preservation of documents, and the overriding objective of dealing with cases justly and at proportionate cost. Applicants must present clear, specific requests supported by robust evidence. Where electronic documents are involved, the parties and non-parties should plan proportionate searches (date ranges, custodians, keywords) and formats for production, following PD 31B principles. In the Business and Property Courts, disclosure of documents between parties is governed by PD 57AD, but PAD and NPD remain governed by CPR 31.16 and 31.17.

Key Term: Norwich Pharmacal order
Equitable relief (outside CPR 31.16/31.17) compelling a person who is mixed up in wrongdoing (albeit innocently) to disclose information—often the identity of a wrongdoer—when justice requires it.

Key Term: Confidentiality club
A case management device in disclosure orders permitting inspection by a defined, limited group (e.g., legal teams and named experts) to protect commercially sensitive material from wider dissemination.

Key Point Checklist

This article has covered the following key knowledge points:

• Pre-action disclosure (PAD) under CPR 31.16 allows potential parties to obtain documents from other likely parties before issuing a claim form, but only where the documents would fall within standard disclosure and early disclosure is desirable to dispose of or resolve the case fairly, or to save costs.
• Non-party disclosure (NPD) under CPR 31.17 allows parties to ongoing proceedings to obtain documents from non-parties, but only where the documents are likely to support the applicant’s case or adversely affect another party’s case and disclosure is necessary for fair disposal or to save costs.
• PAD and NPD applications must be tightly focused and proportionate, with careful definition of the requested documents by custodian, date range and subject matter, and supported by clear evidence explaining why each element of the legal test is met.
• Privilege is preserved. Orders typically require the respondent/non-party to describe any withheld documents briefly and to identify documents no longer in control.
• Costs are discretionary; the unsuccessful party usually pays the application costs. Non-parties are entitled to their reasonable costs of compliance and the court can direct applicants to meet them.
• PAD is a civil court power and is unavailable in tribunals. Part 31 (including NPD) generally does not apply once a claim is on the small claims track.
• Alternatives and complements exist: targeted pre-action protocol requests, specific disclosure against parties during proceedings, pre-action inspection of property (CPR 25.1), subject access requests for personal data, witness summonses for documents, and, where appropriate, Norwich Pharmacal orders.

Key Terms and Concepts

• Pre-action disclosure
• Standard disclosure
• Non-party disclosure
• Norwich Pharmacal order
• Confidentiality club