4. Disclosure and Civil Procedure Rules Part 31

Introduction

Disclosure in civil litigation under is covered under Civil Procedure Rules Part 31 (or Standard Disclosure, to be precise) is an important part of any court proceedings, and it can often reveal key flaws in your opponent’s case. In fact, in many claims, they settle after disclosure is given. That is of course if the parties are conducting their disclosure exercises properly!

There are two points to make before I continue;

Firstly, Standard Disclosure does not apply to the Small Claims Courts. In those cases, you only need to provide the documents you rely on.

Secondly, “Disclosure” is being referred here to civil proceedings. In criminal proceedings “disclosure” means something totally different.

What is Disclosure?

Disclosure falls under Part 31 of the Civil Procedure Rules. Its part of the process where each party will look at each others evidence (or documents), and will be able to find things out about the other sides’ case. Specifically, CPR31.6 sets out what is required to be disclosed.

31.6 Standard disclosure requires a party to disclose only–

(a) the documents on which he relies; and

(b) the documents which –

(i) adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

(c) the documents which he is required to disclose by a relevant practice direction.

When giving disclosure, you have to sign an N265 Form, which confirms you have undertaken your disclosure duties. It is important to note CPR31.23;

CPR 31.23 (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false disclosure statement, without an honest belief in its truth.

So as tempting as it may be to hide documents you don’t want your opponents to see don’t, (a) because it is a contempt of court to do so; (b) because its cheating; and (c) because as I explain below, there are many other ways to obtain evidence – including making applications in other proceedings!

The Disclosure Process

The process for Disclosure is detailed under CPR31.10, but the short of it can best explained as;

  1. The parties send the list (a Disclosure List) of documents to each other on an agreed or ordered date
  2. The parties provide an N265 Statement on the same date
  3. The parties say which documents they want to inspect
  4. The documents are exchanged.

In reality, all parties will always want to inspect every single document, and often the above 4 steps can and often do simultaneously happen.

Under CPR31.13, the parties can agree to give Disclosure in stages. This is more on agreement, and may work for everyone. A good example of why you should try and agree things when dealing with your opposing solicitors!

Disclosure Lists

Obviously things like Disclosure Lists are what you learn either at law school or working at a solicitors – but if you’re a Litigant in Person, you probably won’t have that privilege.

In short, a Disclosure List should be a document where exhibits can be readily identified and listed.

In practice, the best way to approach this would be to do the following;

  1. Identify all the documents that fall under CPR31.6.
  2. Label the documents with exhibit codes and a description – for example “NS1 – Email to John Smith – 27 April 2024”.
  3. Create a 3-column document which sets out (a) Exhibit Number; (b) Description; (c) Date.

You don’t have to use letters in front, but it may help identify things for witness statements. For example if any exhibits relating to a person have their initials at the front, when creating their witness statement it will be quick and easy to cross-reference.

Another point in disclosure is its immensely helpful to keep everything in PDF. If you need to disclose video or audio files, this of course won’t work – but generally make sure Word documents, Excel documents, etc are in PDF – if asked (and if appropriate) you can always provide the originals.

Disclosure in Civil Litigation and CPR Part 31

Specific Disclosure

In theory Specific Disclosure is only required if you believe that your opposing part has not complied with their Disclosure requirements. Specific Disclosure is covered under CPR31.12.

In short, when completing the N265 Form you are required to say what search terms you have used – for example, when searching emails or file storage. However, if you believe search terms have been missed, you can make an Application for Specific Disclosure, where you set out the search terms you want your opponent to use.

The Application will need to be made with the Court and you will need to explain why you make the application, how it will advance the case and so forth – and a Judge will decide if its appropriate to make an Order and to what extent.

There are two points to make on specific disclosure. Firstly, think before you make an application – as it could be opposed, and you could end up with a costs order against you if it fails! Secondly, if you suspect your opponent is not giving honest disclosure, don’t be surprised if even if the Order is made you don’t get anything!

Disclosure from a Third Party

If you believe that a Third Party may have documents that assist your case (especially if your opponent is potentially concealing them) under CPR31.17 you can make an Application to a third party for Disclosure.

There are a couple of things to note with this approach. Firstly, again, the Court will have to decide if it is appropriate and if it gets the case any further. Secondly, you will be responsible for covering the Third Party’s costs – including their legal costs for attendance at the Application hearing, and their time to search and disclose the documents.

Your opponent has 3 stances when it comes to third party disclosure; Unopposed, Opposed or Neutral. Technically there if a fourth, which is do nothing. Any opponent who actively opposes a third party application should be ringing alarm bells – as its ultimately for third party to oppose – and makes you question why your opponent would object!

Subsequent Use

This is a rare one, but a point worth making if there are closely related proceedings.

Under CPR31.22, documents which have been disclosed should only be used for the purpose of those proceedings.

There are some exemptions to this;

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

(c) the party who disclosed the document and the person to whom the document belongs agree.

This may sound like an odd point to make, but if there are proceedings which are closely related using CPR31.22 and CPR31.17 can be very powerful if you’re not getting the disclosure you believe is available from your opponent.

Other Disclosure things….

To avoid repeating the whole of the Civil Procedure Rules, there are various other remedies via Application under CPR31 which is well worth a think about;

  • Documents referred to in a Statement of Case (CPR31.14) – handy when people make references in witness statements, but ‘forget’ to disclose the document
  • Disclosure before proceedings are started (CPR31.6) – an unusual application, highly tactical, and may well turn into a fishing expedition

Conclusion

On the one hand, Disclosure appears to be a daunting task, especially if there are huge amounts of documents to shepherd.

However, if you approach document management systematically the logically – it’s extremely straightforward.

There are plenty of Rules under Part 31 of CPR to ensure that you get proper disclosure – so don’t be discouraged if you’re not getting documents from your opponent voluntarily – but do bear in mind the potential costs consequences if any application you make fails.