UT (Tax & Chancery) UT/2025/000047 - [2025] UKUT 00362 (TCC)

HMRC submit that symmetric disclosure is “the starting point in civil litigation”, although they (necessarily) acknowledge that the court does have a broad discretion to make alternative disclosure orders. We have considered the cases on which Mr Tolley relies as well as the provisions in the CPR to which we were referred. While the CPR does not apply in the FTT, it has been repeatedly recognised that the principles it contains may be a useful guide to the exercise of the FTT’s discretion under the FTT Rules.

In Taylor v Anderton [1995] 1 WLR 447, Sir Thomas Bingham MR at page 462B, pre-CPR, where the MR considered the meaning of the expression “disposing fairly of the cause or matter” and said:

“The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it. That, in my judgment, is the test.”

This reasoning has been approved and applied post-CPR, including by Munby LJ and Pill LJ in Shah v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154 (at [53] and [58] respectively).

In Alame v Shell Plc [2024] EWCA Civ 1500, at [81] Stuart-Smith LJ referred to two aspects of the “inequality of arms” in that litigation, one of which was that there was “a major inequality in access to information”, as evidence submitted by the claimants suggested that the defendants had “considerable quantities of relevant information” that was not available to the claimants. Stuart-Smith LJ (in a paragraph specifically endorsed by Bean LJ at [102]) addressed the process of disclosure at [82]:

“82.

What, then, should be the approach that the Court should take? The short answer is that all of its steps should be informed by the overriding objective and, in particular, by the Court's obligation to ensure that the parties are on an equal footing and can participate fully in the proceedings. In that regard, I agree that in cases where there is a significant asymmetry of information between a claimant and a defendant "the process of disclosure is one of the most powerful tools available for achieving justice"; and that "if the scope of disclosure is too tightly confined by the specific facts that the claimant has already been able to plead, the claimant may simply be unable to obtain the material that it needs to plead and make out its case": see Ventra Investments Ltd v Bank of Scotland [2019] EWHC 2058 (Comm) at [37]-[38]. These observations were made in the context of an action alleging fraud and misconduct; but I take them to be of general application: see, for example, the similar approach of Coulson J (as he then was) in the context of procurement disputes: Roche Diagnostics Ltd v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC) at [20](a) and (b).”

These authorities are discussing the purpose and limits of extended disclosure (or what CPR called standard disclosure). They neither address nor support the proposition that the same standard of disclosure should apply to both sides in litigation unless there is good reason to depart from that principle. While one purpose of extended disclosure may indeed be equality of access to a document and the avoidance of the litigation disadvantage which would flow from unequal access, that says nothing about the separate question of whether extended disclosure should or must be made to all parties or not at all. We do not accept Mr Tolley’s suggestion that a principle of reciprocal disclosure is a “necessary implication” of these and other pronouncements.

We do not find that HMRC’s submissions on symmetric disclosure are borne out by the relevant rules, whether CPR 31 (disclosure in civil proceedings other than small claims and those in Business and Property Courts) or CPR PD 57AD (disclosure in the Business and Property Courts).

CPR 31.5(3) provides that, before the first case management conference, each party must serve a report which describes what relevant documents may exist and states which of the directions under (7) or (8) are to be sought. CPR 31.5(7) then provides:

“(7)

At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure -

(a)

an order dispensing with disclosure;

(b)

an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;

(c)

an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;

(d)

an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;

(e)

an order that a party give standard disclosure;

(f)

any other order in relation to disclosure that the court considers appropriate.”

We consider that this makes it completely clear that the regime is inherently flexible, and that there is no longer a default disclosure order, let alone one which applies reciprocally (as sub-paragraphs (b) and (e) expressly permit asymmetric orders). That standard disclosure is no longer the default position was confirmed by Birss J in the Patents Court (at a time when such proceedings were still subject to the CPR 31 regime) in Positec Power Tools v Husqvarma AG [2016] EWHC 1061 (Pat). At [21], having referred to CPR 31.5(7), Birss J said:

“Two things emerge from this. First is the reference to the overriding objective and the need to limit disclosure to that which is necessary to deal with the case justly. This helps to focus the court’s mind on the task to be undertaken. Second, and critically, is that the effect of this provision is that standard disclosure is one of six options. Counsel for Husqvarna submitted that this meant that standard disclosure was not the default option any more. I agree. The Chancery Guide, para 17.35 makes the same point. As the Chancery Guide states, careful consideration should be given to the alternatives to standard disclosure.”

In the Business and Property Courts, paragraph 2.4 of CPR PD 57AD sets out that the court will be concerned to ensure that disclosure is directed to the issues in the proceedings and that the scope of disclosure is not wider than is reasonable and proportionate in order fairly to resolve those issues. A party wishing to seek disclosure of documents in addition to or instead of “Initial Disclosure” must request “Extended Disclosure” which involves using one of various Models A to D in respect of each of the issues in the case. It is clear from paragraph 8.3 that the court may impose asymmetric disclosure obligations:

“8.3

The court may order that Extended Disclosure be given using different Disclosure Models for different Issues for Disclosure in the case. It is important that there is moderation in the number of Models used and the way in which they are applied to the Issues for Disclosure so that the disclosure process that will follow, using the Models and the Issues for Disclosure, will be practical. In the interests of avoiding undue complexity the court will rarely require different Models for the same set or repository of documents. The court may also order that Extended Disclosure be given by only one party, or that different Models are to apply to each party’s Disclosure on a particular Issue for Disclosure. In some cases, it may be appropriate, practical and proportionate for different Models to be applied to different types of documents (e.g. one Model for physical documents and another Model for electronic documents).”