Evidence and disclosure - Orders for disclosure and specific disclosure

Learning Outcomes

This article details the court's powers to make orders concerning disclosure beyond the initial standard disclosure requirements. It examines the circumstances under which parties might seek, or the court might order, specific disclosure of documents under CPR Part 31. After studying this article, you should be able to explain the differences between standard and specific disclosure, identify the criteria for ordering specific disclosure, and outline the procedure for making such an application, ensuring you can apply these principles to SQE1 scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the court's case management powers in relation to disclosure, particularly orders for disclosure and specific disclosure applications. Your knowledge should enable you to advise on the appropriate steps when standard disclosure appears insufficient and to identify the relevant rules and procedures under CPR Part 31.

As you work through this article, remember to pay particular attention in your revision to:

• The court's general powers to make orders regarding disclosure (CPR 31.5).
• The definition and purpose of standard disclosure (CPR 31.6) as a baseline.
• The definition, purpose, and criteria for specific disclosure (CPR 31.12).
• The procedure for applying for an order for specific disclosure.
• The relevance of proportionality and the overriding objective in disclosure orders.
• How privilege affects inspection rights even when disclosure is ordered.

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. Which CPR part governs applications for specific disclosure?
   1. CPR Part 24
   2. CPR Part 25
   3. CPR Part 31
   4. CPR Part 36
2. 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.

3. True or false? An order for specific disclosure can require a party to search for documents beyond those falling within standard disclosure.

Introduction

While standard disclosure under CPR Part 31.6 forms the baseline for documentary evidence exchange in many civil proceedings, particularly on the fast track, the Civil Procedure Rules grant the court broad powers to manage disclosure tailored to the specific needs of a case. This includes the ability to make various orders concerning disclosure, deviating from or supplementing the standard requirements. A key mechanism within these powers is the order for specific disclosure (CPR 31.12), which allows a party to request, or the court to order, the disclosure of particular documents or classes of documents deemed necessary for the fair resolution of the dispute. Understanding when and how such orders are made is essential for managing the disclosure process effectively.

Court Orders Relating to Disclosure

The court's case management powers under CPR Part 3 enable it to actively control the disclosure process to ensure it aligns with the overriding objective (CPR 1.1), particularly the need for proportionality. Under CPR 31.5, when giving directions for disclosure, the court is not limited to ordering standard disclosure. It can make various orders, including:

• Dispensing with disclosure entirely.
• Ordering disclosure on an issue-by-issue basis.
• Ordering disclosure of specific documents or categories.
• Directing the extent of the search required.
• Requiring disclosure in stages.

This flexibility allows the court to tailor the disclosure process to the complexity and value of the case, avoiding disproportionate costs and effort where standard disclosure might be too broad or insufficient.

Standard Disclosure Recap

Before exploring specific disclosure, it is useful to recall the scope of standard disclosure.

Key Term: Standard Disclosure
The duty under CPR 31.6 requiring a party to disclose only: (a) the documents on which they rely; and (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.

This requires a reasonable search for documents that fall within these categories and are or have been in the party's control.

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.

Specific Disclosure (CPR 31.12)

Situations often arise where a party believes that the standard disclosure provided by their opponent is inadequate or incomplete. They might suspect that relevant documents exist which have not been disclosed, perhaps because they fall outside the strict definition of standard disclosure or because the opponent's search was insufficient. In such circumstances, CPR 31.12 provides a mechanism to seek further disclosure.

Key Term: Specific Disclosure
An order made by the court requiring a party to disclose documents specified in the order, or to carry out a search for such documents and disclose any found. This goes beyond or targets specific aspects of the standard disclosure obligation.

Purpose and Grounds

The purpose of specific disclosure is to ensure that all documents necessary for fairly disposing of the case or for saving costs are before the court and the parties. An application can be made for an order requiring a party to:

• Disclose documents or classes of documents specified in the application.
• Carry out a search for such documents to the extent stated in the order.
• Disclose any documents located as a result of that search.

The court will only make an order for specific disclosure if it is satisfied that it is necessary for disposing fairly of the claim or for saving costs, and that the order is proportionate considering the factors outlined in the overriding objective. This involves balancing the likely relevance and importance of the documents sought against the potential burden and cost of searching for and disclosing them.

Procedure for Application

A party seeking specific disclosure should typically first request the documents voluntarily from the opposing party. If this request is refused or inadequately answered, an application to the court can be made using Form N244.

The application must:

1. Specify the order sought: Clearly identify the specific documents or classes of documents requested, or the specific search required. Vague requests are unlikely to succeed.
2. Be supported by evidence: Usually, a witness statement is required explaining:
   • Why specific disclosure is necessary for fairly disposing of the claim or saving costs.
   • The relevance of the requested documents to the issues in dispute.
   • The grounds for believing the documents exist and are or were in the respondent's control.
   • Why the requested search or disclosure is proportionate.

Court's Discretion

The decision to order specific disclosure rests with the court's discretion. The court will consider the overriding objective, including proportionality. Key factors influencing the decision include:

• Relevance: Are the documents directly relevant to the pleaded issues?
• Necessity: Is disclosure truly needed for a fair outcome or to save costs? Could the issues be addressed through other means (e.g., Requests for Further Information under CPR Part 18)?
• Proportionality: Does the likely benefit of disclosing the documents justify the cost and burden involved in searching for and providing them? Digicel (St Lucia) Ltd v Cable & Wireless Plc [2008] EWHC 2522 (Ch) highlights the court's reluctance to order disclosure that imposes an excessive burden compared to the potential value of the documents.
• Specificity: Is the request targeted and clearly defined, or is it an overly broad "fishing expedition"?

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

Even if specific disclosure is ordered, a party may still be entitled to withhold inspection of certain documents on the grounds of legal professional privilege or other established grounds (CPR 31.19). The order for specific disclosure requires the party to state whether they are withholding inspection and on what grounds. The applicant may subsequently challenge the claim to privilege if they have reasonable grounds to do so.

Key Term: Privilege
A right to withhold inspection (and sometimes disclosure) of certain confidential documents from other parties and the court, primarily covering legal advice privilege and litigation privilege.

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 arise in the context of electronically stored information (ESI). Practice Direction 31B provides guidance. Parties may seek specific disclosure of ESI by requesting searches using particular keywords, date ranges, or custodians, or by requesting disclosure of specific types of electronic documents (e.g., emails between named individuals on a certain topic). The court will apply the same principles of necessity and proportionality, considering the technical challenges and costs associated with searching ESI.

Revision Tip

When considering specific disclosure, always link the request back to the pleaded issues in the statements of case. A request is more likely to succeed if you can clearly articulate how the specific documents sought will help prove or disprove a particular factual allegation relevant to the legal elements of the claim or defence. Avoid overly broad requests.

Key Point Checklist

This article has covered the following key knowledge points:

• The court has wide powers under CPR Part 31 to make orders tailoring disclosure to the needs of the case, beyond standard disclosure.
• Specific disclosure (CPR 31.12) is an order requiring a party to disclose specified documents or classes of documents, or to conduct a specific search.
• An application for specific disclosure requires evidence demonstrating that the disclosure is necessary for fairly disposing of the proceedings or saving costs.
• The court exercises its discretion based on relevance, necessity, and proportionality, considering the overriding objective.
• Even if specific disclosure is ordered, inspection can be withheld if the documents are privileged.
• Challenges to claims for privilege can be made under CPR 31.19.
• Specific disclosure principles apply equally to electronically stored information.

Key Terms and Concepts

• Standard Disclosure
• Control
• Specific Disclosure
• Privilege