Disclosure in England and Wales: PD 57AD and the Five Models

Ask any commercial litigator in England and Wales where the case was really decided and the answer will rarely be the trial. It will be the email nobody expected to surface, produced eight months earlier in a tranche of forty thousand documents, which made one party's pleaded case untenable. Disclosure is the stage at which litigation stops being an exchange of assertions and becomes an exercise in evidence. It is also, by a considerable margin, the most expensive thing that will happen to your budget.

The rules governing it in the Business and Property Courts were rewritten for precisely that reason. Practice Direction 57AD — the successor to the Disclosure Pilot that ran from 2019 — abandoned the reflex of standard disclosure in favour of a menu of models, ranging from almost nothing to something close to the old train-of-enquiry approach, with the parties required to justify their choice issue by issue.

The reform has been in force long enough that its shape is clear. It reduces cost where the parties engage with it properly and increases cost where they do not. This guide sets out what it requires, the model that fits each kind of case, the preservation duty that starts long before proceedings, and the professional obligations that make disclosure different from every other part of the litigation.

Where PD 57AD applies — and where it does not

PD 57AD governs disclosure in the Business and Property Courts: the Commercial Court, the Chancery Division, the Technology and Construction Court, the Circuit Commercial Courts and their equivalents. It does not apply to most claims in the County Court, nor to personal injury and clinical negligence, nor to a number of specialist proceedings excluded by the Practice Direction itself.

Outside its scope, CPR Part 31 continues to govern, and the familiar concept of standard disclosure survives: each party discloses the documents on which it relies, the documents that adversely affect its own case or another party's case or that support another party's case, and anything a practice direction requires. Practitioners should be clear which regime they are in before drafting anything, because the vocabulary is not interchangeable.

The duty that begins before proceedings

The most frequently breached obligation in this field is also the earliest. As soon as a party knows that proceedings are contemplated — not issued, contemplated — it must take reasonable steps to preserve documents in its control which may be relevant. That means suspending automatic deletion policies, preserving back-up tapes and archived mailboxes that would otherwise be overwritten, and sending written notification to those employees and agents who may hold relevant material, telling them to preserve it.

These are not aspirational suggestions. The Practice Direction requires the notification to be in writing, and a party will be asked at the first case management conference what steps it took and when. Documents destroyed after the duty arose are a problem that cannot be cured, and the consequences range from adverse inferences to indemnity costs to, in the most serious cases, the striking out of a claim or defence.

The practical advice is unwelcome but simple: the preservation notice should go out at the same time as the letter before claim, and it should be drafted by somebody who knows where the organisation actually keeps its documents — which is rarely where the organisation's chart says it does.

Initial Disclosure

PD 57AD requires each party, when it serves its statement of case, to provide Initial Disclosure: copies of the key documents on which it has relied in support of its claims or defences, and the key documents necessary to enable the other parties to understand the case they have to meet. It is deliberately modest in scope, subject to limits on the number of pages and documents, and requires no search beyond what the party already has.

Its function is to prevent the pleading of cases that the pleader's own documents contradict. Its practical effect is to move a small amount of work forward by several months, and to give a defendant an early sight of the material the claimant considers its best.

Extended Disclosure and the five models

Anything beyond Initial Disclosure must be requested, and it is granted only where it is appropriate to resolve one or more of the Issues for Disclosure. That phrase carries a good deal of weight. The Issues for Disclosure are not the issues in the case: they are those key issues in dispute which the parties consider will need to be determined by reference to contemporaneous documents. Legal issues, quantum issues resolved by expert evidence, and matters that will turn on oral testimony do not belong on the list.

Sir Geoffrey Vos C addressed this directly in McParland & Partners Ltd v Whitehead [2020] EWHC 298 (Ch), a judgment that remains the essential guidance on the regime. The Issues for Disclosure should be few, should be expressed at a high level of generality, and should not be drafted as a mirror of the pleadings; the exercise is one of co-operation between the parties, not an opportunity for tactical positioning. Courts have shown limited patience with lists of forty issues.

Once the issues are settled, the parties select a model for each of them:

Model A — known adverse documents only. No search is required. The party discloses the documents adverse to its case of which it is actually aware. Appropriate where the issue will be resolved by expert evidence or where no useful documents exist.
Model B — limited disclosure. The key documents relied on and necessary to understand the case, together with known adverse documents. Again, no search.
Model C — request-led search-based disclosure. The requesting party identifies particular documents or narrow classes of document, and the disclosing party searches for them. This is the workhorse of the regime and the model most likely to keep costs proportionate.
Model D — narrow search-based disclosure. A reasonable and proportionate search for documents that are likely to support or adversely affect any party's case on the issue, with or without narrative documents. This is the closest analogue to old-style standard disclosure.
Model E — wide search-based disclosure. Model D extended to documents which may lead to a train of enquiry resulting in the identification of further relevant documents. The Practice Direction describes it as appropriate only in an exceptional case, and courts have treated that description as meaning what it says.

Different models may be ordered for different issues, and frequently should be. A case with one document-heavy factual issue and three issues turning on construction of a contract does not need Model D across the board.

The Disclosure Review Document

The vehicle for all of this is the Disclosure Review Document, completed jointly and filed before the case management conference. It records the Issues for Disclosure, the models proposed for each, the data sources and custodians to be searched, the date ranges, the proposed search terms and technology, and the parties' costs estimates.

The DRD has a reputation for being burdensome, which is deserved when it is approached as a form to be filled in by junior lawyers at the last minute, and undeserved when it is approached as what it is: a negotiation about how much money the parties are going to spend on searching. The costs estimates it contains are read by judges, and a party proposing Model D across every issue at a cost approaching the value of the claim should expect to be asked why.

Technology, and the modern search

Courts in this jurisdiction have accepted the use of technology assisted review — predictive coding — in appropriate cases for the better part of a decade, and the Practice Direction expressly contemplates it. In a case with several hundred thousand electronic documents, manual review is neither affordable nor, on the evidence, more accurate.

What the court expects is transparency about the method: which sources were searched, which custodians, which date ranges, which terms, what sampling was done to validate the results. A party that runs an unexplained process and produces a number is inviting an application. A party that agrees the protocol in the DRD and documents its execution rarely faces one.

Privilege

Documents that are privileged must be identified but need not be produced. The two principal heads are legal advice privilege, protecting confidential communications between lawyer and client for the purpose of giving or receiving legal advice, and litigation privilege, protecting communications with third parties where litigation is in reasonable contemplation and the dominant purpose of the communication is that litigation. Communications genuinely conducted on a without prejudice basis are separately protected.

Two practical warnings. First, the boundary of legal advice privilege in a corporate context — who, within an organisation, is the "client" — is narrower than most commercial parties assume, and internal investigation material is a recurrent battleground. Second, privilege is easily waived: by deploying part of a privileged document, by referring to legal advice in a witness statement to explain conduct, or by careless disclosure. Waiver of part may carry with it the whole of the material to which it relates.

The obligations that make disclosure different

Disclosure is the one part of English civil procedure where a party's duty runs to the court rather than to its own interests. Each party must disclose known adverse documents whether or not any model requires a search and whether or not anybody has asked. The obligation is continuing: a document that surfaces the week before trial must be disclosed then. Legal representatives have their own duties, including the duty to explain the disclosure obligations to the client and to ensure a proper process is followed, and the certificate of compliance is signed on that footing.

Non-compliance is punished by orders for further search, by adverse inferences, by costs on the indemnity basis, and in extreme cases by the striking out of a statement of case. A client who instructs that a particular document should not be produced is instructing his solicitor to do something the solicitor cannot do.

Comparative note, and what it costs

Practitioners used to American litigation should not import their expectations. English disclosure is narrower, judicially controlled from the outset, and does not include depositions or general interrogatories; the differences, and what they mean for a party facing proceedings on both sides of the Atlantic, are set out in our guide to discovery in US civil litigation. Where the object is to identify a wrongdoer rather than to prove a case against a known one, the instrument is not disclosure at all but a Norwich Pharmacal order.

As to cost, disclosure routinely accounts for the largest single line in a commercial litigation budget, and in document-heavy cases it can exceed every other phase combined. That is the reason for the models, and the reason a party that engages seriously with Model C — asking for what it actually needs — will usually spend a fraction of what its opponent spends resisting Model D. It is also the reason to think about the disclosure exercise when the budget is being set, rather than when the invoices arrive. On paying for all of this, see our guide to funding civil litigation in England and Wales.

If you are preparing for a case management conference and need to work out which model to propose for which issue, or what your preservation obligations require of you right now, CommonBench's Legal Chat can take you through the Practice Direction and the authorities.

This article is published by CommonBench for informational purposes only and does not constitute legal advice. If you are facing a disclosure exercise in the Business and Property Courts and need to understand what PD 57AD requires, try CommonBench — AI-powered legal research with verified citations across five common law jurisdictions.