KB-2025-001228 - [2025] EWHC 2506 (KB)

CPR 31.12 provides that:

“The court may make an order for specific disclosure or specific inspection.

(2)

An order for specific disclosure is an order that a party must do one or more of the following things –

(a)

disclose documents or classes of documents specified in the order;

(b)

carry out a search to the extent stated in the order;

(c)

disclose any documents located as a result of that search.

(3)

An order for specific inspection is an order that a party permit inspection of a document referred to in rule 31.3(2).”

CPR PD31A provides as follows:

“5.4

In deciding whether or not to make an order for specific disclosure the court will take into account all the circumstances of the case and, in particular, the overriding objective described in Part 1. But if the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a sufficient search for documents or otherwise) the court will usually make such order as is necessary to ensure that those obligations are properly complied with.

5.5

An order for specific disclosure may in an appropriate case direct a party to –

(1)

carry out a search for any documents which it is reasonable to suppose may contain information which may –

(a)

enable the party applying for disclosure either to advance his own case or to damage that of the party giving disclosure; or

(b)

lead to a train of enquiry which has either of those consequences; and

(2)

disclose any documents found as a result of that search”.

CPR 31.5(5) emphasises the need for disclosure to be in accordance with the overriding objective.

Under CPR 31.7(1) when giving standard disclosure, a party must undertake a reasonable search for documents falling within CPR 31.6(b), namely “documents which (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case”.

The White Book at paragraph 31.12.2, explains that in deciding whether to make an order for specific disclosure:

“The court will need to satisfy itself as to the relevance of the documents sought, and that they are or have been in the party’s control, or at least that there is a prima facie case that these requirements will be met. The relevance of documents is analysed by reference to the pleadings, and the factual issues in dispute on the pleadings.”

However, relevance is “not an absolute concept”: evidence may be “logically” or “theoretically” relevant but nevertheless “too marginal, or otherwise unlikely to assist the court, for its admission to be justified”: HSBC Asia Holdings BV v Gillespie [2011] ICR 192 at [13](2), per Underhill J (as he then was).

Further, relevance is a factor, but is not, of itself, sufficient to justify making an order for disclosure. Rather, the document must be of “such relevance that disclosure is necessary for the fair disposal of the proceedings”: Canadian Imperial Bank of Commerce v Beck [2009] IRLR 740 at [22], per Wall LJ, cited by Linden J in Santander UK PLC v Bharaj [2021] ICR 580 at [24].

The White Book at paragraph 31.0.2 reiterates that “[t]he overriding principle is that disclosure should be restricted to what is necessary in the individual case”.

PD57AD, dealing with disclosure in the Business and Property Courts, does not apply to this claim, but contains some helpful guidance. Paragraph 6.4 sets out certain factors which are relevant in determining whether Extended Disclosure is in accordance with the overriding objective:

“(1)

the nature and complexity of the issues in the proceedings;

(2)

the importance of the case, including any non-monetary relief sought;

(3)

the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence;

(4)

the number of documents involved;

(5)

the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates); and

(6)

the financial position of each party”.

“Extended Disclosure is “all about the just and proportionate resolution of the real issues in dispute”; it is “not…something that should be used as a tactic, let alone a weapon, in hard fought litigation”: UTB LLC v Sheffield United Limited [2019] Bus LR 1500 at [79], per Vos C.

PD57AD also draws a distinction between a document which is relevant to the issues for disclosure and a “narrative document” which is “relevant only to the background or context of material facts or events”: Appendix 1, paragraph 1.12. Unless the court orders otherwise, where an order is made for search-based disclosure, the parties should take reasonable steps to exclude narrative documents: paragraph 8.3, Model D at (3).