Disclosure is not a document dump: what CPR Part 31 expects

Start with issues, not volume

Litigation can generate an urge to prove thoroughness by producing more: every email, every attachment and every version of every file. That instinct can obscure the documents that matter while creating a costly review exercise for everyone involved. The better starting question is narrower: what information bears on the issues the court must decide?

Part 31 applies to all claims except those on the small claims track. It defines disclosure as stating that a document exists or has existed. That is different from simply handing over a bundle. A document means anything in which information of any description is recorded, a definition that extends to electronic documents. Practice Direction 31B expressly includes text messages and databases within its definition of electronic documents.

Standard disclosure is important, but it is not synonymous with every disclosure exercise. For the intermediate and multi-track claims to which rule 31.5’s case-management provisions apply, the court chooses from options that include dispensing with disclosure, reliance-based disclosure with specific requests, issue-by-issue disclosure and standard disclosure. It must consider the overriding objective and the need to limit disclosure to what is necessary to deal with the case justly.

When standard disclosure is required, relevance is not filtered through self-interest. It covers documents on which a party relies, documents that adversely affect its own or another party’s case, documents that support another party’s case, and documents required by a relevant practice direction. The uncomfortable email cannot be omitted merely because it weakens your position. Nor should helpful material be buried in a mass of irrelevant files. Read the actual order, identify the issues and classify documents against them.

Preserve before you organise

A tidy index cannot repair material that has already disappeared. Preservation comes first: stop avoidable deletion, identify who holds potentially relevant information and keep originals in a stable form. This includes sources that are easy to overlook, such as phones, cloud accounts, shared drives and messages stored outside a main email inbox.

For proceedings within Practice Direction 31B, paragraph 7 requires legal representatives, as soon as litigation is contemplated, to notify their clients of the need to preserve disclosable documents. That includes electronic documents that would otherwise be deleted under a retention policy or in the ordinary course of business. A litigant in person should adopt the same practical discipline rather than waiting for a list to be prepared.

Preservation is not a promise that every kept document will ultimately be disclosed or open to inspection. It protects the choices that the applicable rules and any court order require later. Keep privileged material separate for review rather than deleting it or circulating it informally.

Make and explain a reasonable search

A reasonable search is not necessarily an exhaustive search through every conceivable location. It is a search whose scope can be explained by reference to the case. For standard disclosure, rule 31.7 requires a reasonable search for documents within rule 31.6(b) or (c). Relevant factors include the number of documents, the nature and complexity of the proceedings, the ease and expense of retrieval, and the likely significance of what may be found. A party that does not search a category because it would be unreasonable must identify that category and the omission in its disclosure statement.

The search also has an outer boundary. The duty to disclose under Part 31 is limited to documents that are or have been within a party’s control, meaning physical possession or a right to possession, inspection or copies. That makes a custody map useful: record not only where files sit, but also whether you hold them directly, can obtain them, or know that they have left your control.

Electronic material needs particular thought. Practice Direction 31B explains that the reasonable search depends on the circumstances and that it may be reasonable to search only some storage systems or to use limits such as dates, locations or categories. Reasonably accessible data is normally the primary source of electronic disclosure. A sensible search record might therefore list the accounts and devices searched, the date range, any search terms, the people whose records were included and the places deliberately left out, with reasons.

Do not treat a keyword search as a magic completeness certificate. Practice Direction 31B warns that simple keyword or automated searches will often be insufficient alone and suggests considering supplements such as reviewing important documents or categories individually. Test whether the method captures attachments and alternative language. The aim is a defensible method, not a technically impressive but poorly targeted exercise.

Build the list and handle inspection

The list is an account of the search and the documents, not a cover note for a document dump. For standard disclosure, each party must make and serve a list in the relevant practice form, identifying documents conveniently and concisely, unless the parties agree in writing to disclose without a list. It must identify documents for which inspection is withheld and documents no longer in the party’s control, saying what happened to the latter. The disclosure statement sets out the search undertaken and certifies that the party understands and, to the best of its knowledge, has carried out the disclosure duty; the parties may also agree in writing to disclose without that statement.

Prepare the working index before completing the formal list. It allows duplicates, versions, missing items and withholding questions to be addressed without losing the underlying record. If a document is no longer held, do not quietly drop the row: preserve the explanation of what happened.

The task does not end when the list is served. A Part 31 disclosure duty continues until the proceedings conclude, and documents within that duty that later come to a party’s notice must immediately be notified to every other party. Keep the index live and retain a clear sequence for additions rather than replacing earlier versions without a record.

Disclosure and inspection are related but distinct. Rule 31.3 gives a receiving party a right to inspect a disclosed document subject to exceptions, including loss of control and a right or duty to withhold inspection. Where a right to inspect exists, rule 31.15 provides for written notice and inspection within seven days of its receipt; copies requested with an undertaking to pay reasonable copying costs must also be supplied within seven days of receipt of the request. If inspection is disputed, identify the precise document and basis rather than making a general objection.

Keep PD57AD separate

The Disclosure Review Document, Initial Disclosure and Models A to E are PD57AD mechanisms, not universal Part 31 requirements. Importing their vocabulary into an ordinary Part 31 case can turn a useful discussion into a dispute about the wrong exercise.

Practice Direction 57AD governs disclosure in proceedings in the Business and Property Division, subject to its stated exclusions. For proceedings falling within it, Part 31 and Practice Directions 31A and 31B do not apply except for the provisions preserved in Section II and related provisions identified by PD57AD. The first task is therefore to identify the court, the applicable rules and the order actually made.

There are conceptual similarities, but the machinery is not identical. PD57AD imposes a duty to take reasonable steps to preserve potentially relevant documents. It also requires disclosure of known adverse documents, unless privileged, regardless of whether a disclosure order is made. Its Initial Disclosure generally accompanies a statement of case and covers key documents relied on and key documents necessary for other parties to understand the case; it does not require a further search and need not include adverse documents. Extended Disclosure uses Issues for Disclosure and court-approved models, and search-based models C, D and E require justification as appropriate, reasonable and proportionate.

That is a more structured route than simply asking for “standard disclosure”. A party in a Part 31 case should not assume that it must complete a Disclosure Review Document or propose a model. Use the terminology of the regime that applies, and use any order to resolve uncertainty before expending effort on the wrong process.

Use a working document index

A spreadsheet or consistently formatted table is enough for an initial working index. Give each item a stable reference and keep one row per document or separately significant version. The index should help you retrieve the original, explain its relevance and track what has happened to it.

The index also disciplines a request for more material. Instead of alleging that the other side “must have more”, identify the missing document or narrow class, the issue it concerns, why it is likely to exist or have existed, and what source or search may locate it. First check your own list, the other party’s list and the existing order.

Under Part 31, the court may order specific disclosure of specified documents or classes, require a search to a stated extent and require disclosure of what that search locates; it may also order specific inspection of a document withheld on proportionality grounds under rule 31.3(2). The overriding objective requires cases to be dealt with justly and at proportionate cost, and the parties must help the court further that objective. A focused request supported by a clear index is easier to assess than a demand for everything.