UK: Disclosure Reports – Start Thinking Early

Last Updated: 11 November 2013
Article by Lucinda Barker

Summary and implications

As part of the so called 'Jackson Reforms', parties to multi-track litigation are now required to file a report at least 14 days prior to the first Case Management Conference (CMC) which provides details of what documents each party has and where the documents are stored or located (a Disclosure Report).

This means that parties must start to consider disclosure issues and what documents they possess at a much earlier stage in the litigation process and preferably from the outset.

As soon as litigation is in contemplation, parties should start to try to identify:

  • what potentially disclosable documents are in their possession;
  • where these documents are located;
  • how these documents are stored (in case of electronic documents); and " the approximate volume of the documents.


The Jackson Reforms, which came into force on 1 April 2013, have introduced a number of mechanisms aimed at ensuring that the costs incurred in litigation proceedings are proportionate to the amount in dispute and the complexity of the case.

Going forward, the courts will be taking a much more active role in managing the costs of the litigation process and, as part of that process, each party must file and serve a Disclosure Report not less than 14 days before the first CMC.

In addition, at least a week before the CMC, the parties must also discuss and seek to agree a proposal for disclosure. In fact, it would be prudent to meet some time before the Disclosure Report needs to be filed at court.

What is a Disclosure Report?

In short, the Disclosure Report enables parties to set out:

  • what categories of relevant documents exist (such as project correspondence, meeting minutes, site diaries, progress reports, photographs, programmes, emails etc.);
  • the location of the relevant documents. For electronic documents, this could include information regarding what type of software, media or equipment documents are stored on, such as servers, document management systems, hand-held devices, removable storage devices or PCs. For hard copy documents, information regarding off site storage facilities might be relevant;
  • a broad range of what costs are involved in giving standard disclosure; and
  • which disclosure option the party is seeking from the court.

The Disclosure Report form (Form N263) is very short on space and so it may be difficult to provide much detail. Where the parties have a large volume of electronic documents they may wish to set out more details about their documents in an "Electronic Documents Questionnaire" (see Form N264) which should accompany the Disclosure Report when it is filed at court.

As part of the Jackson Reforms, standard disclosure should no longer be considered the default option and parties are encouraged to consider from a 'menu' of disclosure options including:

  • dispensing with disclosure altogether;
  • only disclosing documents on which the parties rely (together with an option to apply for specific disclosure);
  • disclosure on a "train of enquiry" basis i.e. disclosing documents which may lead to a train of enquiry; or
  • disclosing documents on an issue by issue basis.

In order for parties to be able to properly consider which disclosure option will be suitable to the case in question and to enable them to have a meaningful dialogue regarding disclosure prior to the first CMC, it will be necessary for each party to have a good understanding of the categories and volume of documents that it possesses and the issues in dispute.

To assist with this information gathering exercise, clients often benefit from appointing someone internally to take responsibility for and to oversee the disclosure process (including the initial investigation regarding document sources and location). Alternatively, some clients have also found it useful for lawyers to spend some time at their offices to gather information on what documents exist, how many there are and where they are stored.

Recent experience shows that the TCC tends to fix the first CMC at a very early stage in the proceedings (generally prior to any defence being served) and this can make it difficult for the parties to have a meaningful discussion regarding disclosure in advance of the first CMC (particularly in circumstances where there may be a counterclaim). Until it is clear what issues will be relevant to the proceedings it is difficult to establish the scope and extent of disclosure that will be required.

In addition, it is also difficult to provide the court with an accurate estimate of the costs each party is likely to incur in giving standard disclosure.

What is the significance?

The significance of the new disclosure requirements is that parties to litigation must now start thinking about disclosure and, most importantly, the costs of disclosure at a much earlier stage of proceedings and preferably as soon as litigation is in contemplation.

Without understanding the potentially disclosable documentation, the parties and their legal representatives will find it very difficult to have a meaningful discussion about the best way to approach disclosure or properly to estimate the costs of disclosure, running the risk that their budget is wildly wrong. If the costs of disclosure should escalate beyond the budget provided to the court, it is likely that the winning party will not be able to recover the shortfall from the losing party.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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