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

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.

SQE1 Syllabus

For SQE1, a solid understanding of the rules governing disclosure, including specific types like pre-action and non-party disclosure, is essential. You need to know when and how these applications can be made and the potential impact on case strategy and costs. Your revision should focus on:

  • 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.

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 made:
    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, and strategic uses of PAD and NPD is essential for effective case preparation and management.

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.

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.

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. Standard disclosure requires disclosure of documents relied upon, documents adversely affecting one's own or another's case, or supporting another's case (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.

The requirement that disclosure be 'desirable' gives the court considerable discretion. The court will weigh the benefits of early disclosure against the potential burden on the respondent and the risk of satellite litigation. The applicant must persuade the court that the order is necessary for one of the stated purposes and not merely a 'fishing expedition' to find grounds for a claim.

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.
  • The documents or classes of documents sought.
  • Evidence satisfying the conditions in CPR 31.16(3).
  • Why disclosure is desirable for one of the specified purposes.

The application notice and supporting evidence must be served on the respondent.

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.
  • Enable a better understanding of the potential defendant's position.
  • Facilitate early settlement by revealing the strengths or weaknesses of the case.
  • Help narrow the issues in dispute if proceedings become necessary.

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 an Employment Tribunal 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: Yes, Ahmed can apply under CPR 31.16. He (applicant) and TechCorp Ltd (respondent) are likely parties to subsequent Employment Tribunal proceedings. If proceedings had started, TechCorp's standard disclosure duties would likely cover internal emails and performance reviews relevant to the dismissal. Disclosure before proceedings appears desirable to potentially resolve the dispute without formal litigation (if the documents support Ahmed's suspicion, TechCorp might settle) or, at least, to allow fair disposal and save costs by clarifying the merits early on. Ahmed's application would need evidence addressing these points.

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.

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.

The test requires the documents to be likely to support/adversely affect a case, which is a lower threshold than proving they will do so. However, the necessity requirement ensures that orders are not made lightly. The court must be convinced that the disclosure is genuinely needed for the just resolution of the proceedings or for cost-saving, and that the information cannot reasonably be obtained otherwise.

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 usually on the other parties to the litigation. The evidence must explain:

  • The relevance of the documents sought to the issues in the proceedings.
  • How the documents are likely to support the applicant's case or adversely affect another party's case.
  • Why disclosure from the non-party is necessary for fair disposal or to save costs.

The court will consider the application, weighing the applicant's need for the documents against the potential burden and intrusion for the non-party. The non-party has the right to object to the application.

Strategic Use of NPD

NPD is essential when key evidence (e.g., bank records, expert reports commissioned by someone else, correspondence between the opponent and a third party) 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.

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 (documents) held by TestLab Ltd (non-party) 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 the material quality at the relevant time, which might not be available elsewhere. BuildCo would need to serve the application on both TestLab Ltd and Supplier Ltd and provide evidence addressing the CPR 31.17(3) criteria.

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 purposes 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. Confusing these tests is a common error.

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 it to be necessary for fair disposal/saving costs.
  • Scope: PAD relates to documents falling under standard disclosure; NPD relates to documents likely to support/adversely affect a case.

In both applications, the court retains discretion. It will always consider proportionality, the burden on the respondent/non-party, and the overriding objective of dealing with cases justly and at proportionate cost. Applicants must present clear, specific requests supported by robust evidence.

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.
  • The court grants PAD if the respondent and applicant are likely parties, the documents fall under standard disclosure, and disclosure is desirable to fairly dispose of the case, resolve it without proceedings, or save costs.
  • Non-party disclosure (NPD) under CPR 31.17 allows parties to ongoing proceedings to obtain documents from non-parties.
  • The court grants NPD if 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.
  • Both applications require evidence satisfying the specific CPR tests and are subject to the court's discretion, considering proportionality and the overriding objective.

Key Terms and Concepts

  • Pre-action disclosure
  • Non-party disclosure
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