Evidence and disclosure - Standard disclosure

Learning Outcomes

This article outlines standard disclosure in civil litigation under CPR Part 31 and related practice directions, including:

• The test for standard disclosure in CPR 31.6 and the documents within its scope.
• Disclosure versus inspection and the inspection process (time limits and grounds for refusal).
• Reasonable and proportionate searches under CPR 31.7 and PD 31A, and sensible limitations by date range, custodians, locations, or keywords.
• Documents within a party’s control under CPR 31.8 and treatment of documents no longer in control (loss or destruction explanations).
• Preparation of a compliant disclosure list (Form N265), the disclosure statement, and required signatories for individuals and corporate parties.
• Legal advice, litigation, and without prejudice privilege, including waiver, inadvertent disclosure, and redaction.
• Proportionate electronic disclosure under PD 31B, including preservation steps, pre-CMC discussions, keyword and custodian selection, de-duplication, and use of the Electronic Documents Questionnaire.
• The ongoing nature of disclosure (CPR 31.11), early preservation duties, and sanctions for breach (costs, adverse inferences, contempt).
• Applications for specific disclosure (CPR 31.12) where standard disclosure appears inadequate.
• Track-specific disclosure expectations (small claims, fast track, multi-track) and the role of the disclosure report (Form N263) in multi-track cases.

SQE1 Syllabus

For SQE1, you are required to understand the principles and application of standard disclosure in civil litigation, with a focus on the following syllabus points:

• The definition and scope of standard disclosure under CPR 31.6.
• The duty to conduct a reasonable and proportionate search for documents.
• The meaning of control in relation to documents.
• The process for preparing and serving a disclosure list and statement.
• The operation of privilege (legal advice, litigation, and without prejudice privilege).
• The handling of electronic documents and electronic disclosure.
• The ongoing nature of the disclosure obligation and consequences of breach.
• The right of inspection, time limits, and when inspection may properly be refused.
• The court’s disclosure directions, including disclosure on different tracks and tailored orders in multi-track cases.
• Specific disclosure applications where standard disclosure has been inadequate.

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. What documents must be disclosed under standard disclosure in civil litigation?
2. What factors determine whether a search for documents is "reasonable"?
3. How does privilege affect a party’s disclosure obligations?
4. What is required when handling electronic documents in disclosure?

Introduction

Standard disclosure is a key stage in civil litigation. It ensures that all parties have access to documents relevant to the issues in dispute, supporting fairness and transparency. The Civil Procedure Rules (CPR) set out strict requirements for what must be disclosed, how searches are conducted, and how privilege and electronic documents are managed. Understanding these rules is essential for effective litigation and for SQE1 success.

Disclosure and inspection are governed primarily by CPR Part 31 and its practice directions. Part 31 applies to all claims except those allocated to the small claims track, where the usual direction is simply to file and serve copies of all documents relied upon no later than 14 days before the hearing. On the fast track, courts typically order standard disclosure. In multi-track cases, the court may tailor disclosure to the case’s needs by directions under CPR 31.5. Parties may be required to file a disclosure report (Form N263) and to discuss electronic disclosure before the first case management conference (CMC), reflecting the overriding objective to deal with cases justly and at proportionate cost.

Key Term: standard disclosure
The process by which a party must disclose documents on which they rely, documents that adversely affect their own or another party’s case, documents that support another party’s case, and documents required by a relevant practice direction.

Key Term: document
Anything in which information of any description is recorded, including paper, emails, digital files, metadata, photographs, and audio or video recordings.

What is Standard Disclosure?

Standard disclosure requires each party to disclose documents relevant to the matters in dispute. The rules are set out in CPR 31.6.

A party must disclose documents that:

• They rely on.
• Adversely affect their own case.
• Adversely affect another party’s case.
• Support another party’s case.
• Are required to be disclosed by a practice direction.

Standard disclosure is not a licence to disclose everything that might be of background interest; it is confined to documents relevant to issues that remain in dispute. Narrative documents may be excluded unless ordered otherwise. In multi-track cases, the court has a menu of options and might order standard disclosure, disclosure limited to reliance documents, issue-by-issue disclosure, staged disclosure, or even dispense with disclosure. Exceptionally, the court may order a broader “train of enquiry” approach on defined issues where justified, but this is not the default.

The Duty to Search and Disclose

The duty to disclose is not limited to documents a party wishes to use. It extends to any document that meets the standard disclosure test, even if it is unhelpful or damaging to the party’s case.

Key Term: duty to search
The obligation to make a reasonable and proportionate search for documents required under the applicable disclosure order.

A party must conduct a reasonable search for documents. What is “reasonable” is contextual and guided by CPR 31.7 and PD 31A. Factors include:

• The number of documents involved.
• The nature and complexity of the proceedings.
• The significance of any document likely to be located.
• The ease and expense of retrieval.
• Proportionality under the overriding objective.

The search scope can be sensibly limited, for example by:

• Date ranges aligned to the pleaded issues.
• Custodians most likely to hold relevant material.
• Locations (e.g., head office and specific branches involved).
• File types or systems (e.g., excluding backup tapes if disproportionate).
• Agreed keywords/concepts to filter electronic stores.

If a party decides not to search for a category of documents because it would be unreasonable or disproportionate, they must state this in the disclosure statement and explain why. A reasonable search does not necessarily require checking every potential repository; however, it should cover the most likely sources in a manner that balances thoroughness with proportionality.

Worked Example 1.1

A company is involved in a contract dispute. It has 10,000 archived emails and hundreds of paper files. What should the company do to comply with its duty to search?

Answer:
The company must make a reasonable and proportionate search. It should focus on emails and files likely to contain relevant information, using targeted searches (e.g., by date, sender, or keywords). It is not required to review every document if this would be disproportionate, but it must explain any limitations in its disclosure statement.

Control of Documents

A party is only required to disclose documents that are or have been in its “control”.

Key Term: control
A party has control of a document if it is or was in their physical possession, if they have or had a right to possession, or if they have or had a right to inspect or take copies of it.

Control is broader than possession. It includes documents held by agents (such as solicitors, accountants, or experts) and documents to which the party has a contractual or practical right of access (for example, within a corporate group). Documents stored overseas or with third-party service providers can still be under a party’s control if the party can require their production or obtain copies. If a party no longer has a document in its control, it must identify it and state what happened to it (e.g., sent to an archive, destroyed).

Worked Example 1.2

A party once held a contract relevant to the dispute but lost it in a flood. What should they do?

Answer:
The party must disclose that the contract existed, explain that it is no longer in their control, and state what happened to it (e.g., destroyed in a flood). This information is included in the disclosure list.

Worked Example 1.3

A UK subsidiary is sued over a supply contract. During a restructure, paper and electronic records were shipped to the parent company’s archive overseas. Are those documents within the UK subsidiary’s control for disclosure?

Answer:
Yes, if the subsidiary has or can require access to those records (for example, under group policies or contractual rights), the documents remain within its control and must be disclosed, even though they are held abroad.

Preparing and Serving the Disclosure List

After completing the search, each party prepares a disclosure list (using Form N265 in practice). The list is divided into:

1. Documents the party does not object to the other side inspecting.
2. Documents the party objects to inspection (usually because of privilege).
3. Documents the party no longer has in their control.

The list should identify documents in a convenient order and as concisely as possible. Good practice is to list documents in date order, number them consecutively, and provide short descriptions (e.g., “Email A to B re delivery schedule, 12/03/20XX”). Where many documents fall into a homogeneous category (e.g., monthly bank statements), they may be listed by category with ranges and totals.

The list must be accompanied by a disclosure statement, signed by the party, confirming the extent of the search and that they understand their duty.

Key Term: disclosure statement
A signed statement confirming the extent of the search for documents and certifying that the party understands and has complied with their duty of disclosure.

For corporate parties, the statement must be signed by an individual within the organisation who is responsible for and knowledgeable about the process (not the legal representative). The statement must specify any limitations in the search (e.g., date cut-offs, systems excluded) and explain why these are reasonable. Making a false disclosure statement without honest belief in its truth can amount to contempt of court.

Disclosure lists are usually exchanged simultaneously by the deadline set in the directions order. Standard directions commonly allow around 28 days from the date of the order to serve the list, though the timetable may vary.

Right of inspection and copies:

• A party to whom a document has been disclosed has a right to inspect it unless an exception applies (privilege, document no longer in control, or inspection would be disproportionate).
• Inspection is exercised by giving written notice of the wish to inspect; the disclosing party must permit inspection within 7 days of receiving the notice or provide copies on payment of reasonable copying charges.
• Where only parts of a document are relevant, irrelevant confidential passages may be redacted, with the basis for redaction explained upon request.

Parties should coordinate inspection arrangements sensibly (often by providing electronic copies of relied-upon documents at the time of list exchange) to save time and cost.

Privilege and Withholding Inspection

Some documents, though disclosable, may be withheld from inspection if they are privileged.

Key Term: privilege
The right to withhold inspection of a document, even though its existence must be disclosed, because it is protected by legal advice privilege, litigation privilege, or without prejudice privilege.

Key Term: legal advice privilege
Protects confidential communications between a lawyer and client made for the purpose of giving or receiving legal advice, including the continuum of communications related to that advice, regardless of whether litigation is contemplated.

Key Term: litigation privilege
Protects confidential communications between a lawyer or client and a third party, or between client and third party, made for the dominant purpose of obtaining information or advice in connection with existing or reasonably contemplated litigation.

Key Term: without prejudice privilege
Protects genuine settlement communications from being used as evidence in court, even if not marked “without prejudice”, and typically prevents inspection by the other party.

If a party claims privilege, the document must still be described in the disclosure list in a way that enables the other party to understand the claim (e.g., “Letter: client to solicitor seeking legal advice on contract, 03/04/20XX – legal advice privilege”). The reason for withholding inspection must be stated.

Important points on privilege:

• Privilege belongs to the client and may be waived (expressly or impliedly) by the client, not the lawyer. Serving a privileged document on the other side will usually waive privilege over that document.
• If privilege is inadvertently waived by allowing inspection of a privileged document, the receiving party may use it only with the court’s permission. Where inspection occurred due to an obvious mistake, the court may prohibit use to uphold fairness.
• Referring to the substance or effect of a privileged document in pleadings or witness statements may amount to waiver and can give rise to a right to inspection of that document.
• “Without prejudice save as to costs” communications remain privileged for liability and quantum issues but may be shown to the court on costs at the end of the case.

Worked Example 1.4

A party’s solicitor emails a client with legal advice about the dispute. Is this document privileged?

Answer:
Yes. The email is a confidential communication for the purpose of giving legal advice, so it is protected by legal advice privilege. It must be listed in the disclosure list, but inspection can be withheld.

Worked Example 1.5

The claimant wrote to the defendant offering to settle on reduced terms, admitting some weaknesses and proposing a compromise. The letter was not marked “without prejudice”. Can inspection be withheld?

Answer:
Yes. The substance controls. The letter is a genuine settlement communication and is protected by without prejudice privilege even though it was not marked “without prejudice”. It should be listed (as privileged) but inspection may be withheld.

Public interest immunity and self-incrimination are rare, separate grounds for withholding inspection on public policy grounds. Where relied upon, the basis must be clearly asserted and justified.

Electronic Disclosure

Most documents are now created and stored electronically. The CPR require parties to discuss and agree how electronic documents will be preserved, searched, and disclosed, especially in complex or high-value cases.

Key Term: electronic disclosure
The process of identifying, preserving, searching, reviewing, and disclosing relevant electronic documents (including emails, databases, metadata, and deleted files) consistently with CPR and court directions.

Core principles (PD 31B):

• Manage electronic documents efficiently to minimise cost.
• Use appropriate technology to ensure effective searches and review.
• Approach proportionately and consistently with the overriding objective.
• Provide electronic documents for inspection in a form that affords equivalent functionality (e.g., searchable format) and, where relevant, includes metadata.
• Avoid disclosing electronic data that is irrelevant, to prevent unnecessary burden on both sides.

Before the first CMC, parties and their representatives must:

• Discuss categories of electronic documents, relevant custodians, devices and media (servers, laptops, mobile phones, cloud storage), and retention policies.
• Agree the scope of a reasonable search (date ranges, custodians, data sources).
• Consider tools and techniques such as agreed keywords, concept searching, email threading, de-duplication, near-duplicate detection, and data sampling.
• Discuss methods to identify and segregate privileged material, processes for redaction, and protocols for inadvertent disclosure.
• Consider staged disclosure and whether to use a neutral electronic repository.
• Discuss formats for exchange (e.g., PDF, TIFF with load files, native formats) and fields to include (date, author, recipients, subject).
• Address preservation steps (issue a document hold, suspend auto-deletion/back-up overwrites, preserve mobile/app data) to prevent loss.

The parties may complete the Electronic Documents Questionnaire (Form N264) and file it with their disclosure reports. In multi-track cases, the disclosure report (Form N263) must describe electronic storage systems and estimate the costs of standard disclosure, including e-disclosure.

Exam Warning

Inadequate electronic searches or failure to agree a reasonable approach can result in court sanctions or an order for further disclosure. Always document and explain your search methods.

Worked Example 1.6

In a shareholder dispute, the likely sources of relevant ESI include board emails, chat messages, and files in cloud drives. How can the parties keep e-disclosure proportionate?

Answer:
Agree date ranges keyed to alleged events; limit custodians to directors and relevant managers; use agreed keywords and concept searches; de-duplicate emails; sample results to validate efficacy; preserve mobile data for those custodians; exchange documents in a searchable format with agreed metadata fields; and record limitations in the disclosure statements.

Ongoing Duty and Consequences of Breach

The duty to disclose is ongoing (CPR 31.11). If new documents come to light after the initial disclosure, they must be disclosed promptly by serving a supplemental list and, if relevant, updating the disclosure statement. If a party wishes to rely at trial on a document not previously disclosed, they will need the court’s permission.

The right to inspect a disclosed document is automatic unless an exception applies. Requests to inspect must be made in writing and complied with within 7 days. If a party refuses inspection on the ground that it is disproportionate, they must explain the basis (typically in the disclosure statement), and the court may be asked to rule on proportionality.

Failure to comply with disclosure obligations can lead to serious consequences, including:

• The party being unable to rely on undisclosed documents at trial without permission.
• Adverse costs orders and, if appropriate, indemnity costs.
• The court drawing adverse inferences where documents have been destroyed or withheld.
• Case management sanctions, including unless orders and, in serious cases, strike out.
• Sanctions for contempt of court if a false disclosure statement is made.

Where a party’s disclosure appears inadequate, the other side may first write a detailed letter explaining the perceived deficiencies and proposed remedial steps. If this does not resolve matters, an application for specific disclosure under CPR 31.12 may be made. The court can then order the respondent to:

• Disclose specified documents or classes of documents.
• Carry out further searches to a stated extent.
• Disclose any documents located as a result.

Legal representatives have duties to the court and the other side regarding disclosure. If a client will not disclose a document that should be disclosed, the representative must advise them to comply and may have to cease acting if the client persists. From the outset of a dispute, advise clients to suspend routine destruction, preserve potentially relevant ESI, and maintain a litigation hold.

Revision Tip

Always advise clients to preserve all potentially relevant documents from the outset of a dispute. Destruction or loss of documents can have serious legal and cost consequences.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Standard disclosure requires parties to disclose documents on which they rely, that adversely affect their own or another party’s case, or support another party’s case.
• The duty to search for documents must be reasonable and proportionate, considering the case’s complexity and volume of documents, the significance of likely finds, and ease and expense of retrieval.
• Only documents within a party’s control must be disclosed, including those previously held or to which the party has a right of access.
• The disclosure list (Form N265) must be accompanied by a disclosure statement signed by the party, explaining the search, limits applied, and confirming understanding of the duty.
• A party has a right to inspect disclosed documents within 7 days of notice unless an exception applies; irrelevant confidential material may be redacted, with reasons.
• Privileged documents must be listed but can be withheld from inspection, with reasons stated. Privilege may be lost by waiver or inadvertent disclosure, subject to the court’s control.
• Electronic disclosure requires parties to agree on proportionate search methods, preservation steps, formats for exchange, and to consider using the Electronic Documents Questionnaire.
• The duty to disclose is ongoing; new documents must be disclosed promptly, and reliance at trial on undisclosed documents requires permission.
• If disclosure is inadequate, the court can order specific disclosure, further searches, or staged disclosure; non-compliance can attract sanctions and adverse costs.
• Track differences matter: Part 31 does not apply to small claims, standard disclosure is typical on the fast track, and multi-track cases often involve tailored directions and a disclosure report.

Key Terms and Concepts

• standard disclosure
• document
• duty to search
• control
• disclosure statement
• privilege
• legal advice privilege
• litigation privilege
• without prejudice privilege
• electronic disclosure