The Civil Procedure (Amendment) Rules 2026 introduce a concise but important addition to the disclosure toolkit.  New CPR 31.12A empowers the court to order a party to request documents from “any person” where those documents may support or adversely affect the case of any party.  A parallel amendment to PD 57AD embeds the concept within the Disclosure Pilot framework.

At first glance, this appears to be a modest procedural development.  It does not create a new category of disclosure or displace the existing regimes for specific disclosure or non-party disclosure under CPR 31.17.  But viewed more broadly, it reflects a shift in how the courts expect parties to approach disclosure: with greater realism, earlier engagement, and a sharper focus on proportionality.

In that context, CPR 31.12A resets expectations and has the potential to alter how disclosure issues are approached in commercial disputes.

A step between party and non-party disclosure

The established framework has long been clear.  Parties must search for and disclose documents within their possession or control. Where relevant material sits with a third party, the mechanism for obtaining it is typically an application for non-party disclosure under CPR 31.17 – often contested, frequently costly, and not without jurisdictional and practical complications.

CPR 31.12A sits between those two stages.  It permits the court to direct a party to take a step which, in many cases, might sensibly be taken in any event: asking a third party to provide documents voluntarily.

The order is directed to the party, not the third party. It does not compel compliance from the recipient.  But it formalises what was previously left to informal practice or tactical choice. What might once have been optional, may now become expected.

This aligns with a broader trend in the CPR.  Courts increasingly expect parties to engage constructively with disclosure issues and avoid unnecessary applications.  CPR 31.12A gives that expectation a clearer procedural footing.

Legislative trigger: closing a gap exposed by recent cases

Recent authority illustrates why this intervention was needed.

In Phones 4U Ltd v EE Ltd [2021] EWCA Civ 116, the Court of Appeal upheld an order requiring a party to take steps to obtain access to personal devices held by employees and agents.  This was justified as part of the process of identifying documents within the party’s control.  By contrast, in Various Airfinance Leasing Companies v Saudi Arabian Airlines [2021] EWHC 2904 (Comm), the court refused to require a party to use its best endeavours to obtain documents from third parties outside its control, as to do so went beyond the limits of the court’s jurisdiction.

The distinction is a fine one, but important: one fell within the scope of existing disclosure obligations, the other was treated as an impermissible extension.

That position was reaffirmed in McLaren Indy LLC v Alpa Racing USA LLC [2025] EWHC 1825 (Comm), where the High Court confirmed it had no power to require a party to request documents from a third-party witness outside the jurisdiction.

The result was a practical gap. Relevant documents might clearly exist but fall outside a party’s control and be difficult to obtain through CPR 31.17 – leaving no efficient middle ground.  CPR 31.12A is best understood as a response to that gap. 

The underlying reality: documents don’t sit neatly within corporate boundaries

The rationale for CPR 31.12A is straightforward.  In modern commercial disputes, it is increasingly artificial to treat relevant documents as confined to the corporate entity which happens to be a party to proceedings.

Key material may sit with:

• former employees, often on personal devices or accounts;
• external advisers engaged on transactions;
• related or group companies not formally party to the proceedings;
• agents, intermediaries or brokers; or
• third-party service providers responsible for storing or processing data.

The concept of “control” does not always capture these realities.  Nor is it proportionate to default immediately to a contested non-party disclosure application.

CPR 31.12A reflects a more pragmatic approach: where documents are likely to exist and may be obtainable through a straightforward request, that step should be taken before more formal mechanisms are deployed.

From passive to active: implications for disclosure strategy

The most immediate consequence of CPR 31.12A is to push disclosure thinking earlier in the lifecycle of a dispute.

Parties will need to consider not only what documents they hold, but what documents may exist in the hands of others – and whether they can reasonably be obtained.

That has several practical implications.

First, disclosure strategy becomes more front-loaded.  Identifying potential third-party custodians will become part of the initial case assessment rather than an issue deferred to the disclosure phase.

Secondly, parties will need to approach requests for third-party material with a degree of care.  A CPR 31.12A request is unlikely to be immune from scrutiny.  If a party later pursues a CPR 31.17 application, the court is likely to examine what steps were taken, how requests were framed, and whether they were pursued proportionately.

Thirdly, there may be cost implications.  As elsewhere in case management, proportionality will be key.  A party which fails to take obvious, low-cost steps to obtain relevant documents may struggle to justify more expensive applications later.  Equally, overbroad or unfocused requests risk generating unnecessary dispute and expense.

It is important not to overstate the effect of the new rule.

Limits and uncertainties

CPR 31.12A does not compel cooperation from the third party itself.  Where a recipient declines to provide documents, the requesting party remains reliant on the existing framework for non-party disclosure.  The rule is therefore a preliminary step, not a substitute.

Nor does it resolve more complex issues such as jurisdiction, confidentiality, privilege or data protection.  Requests to third parties – particularly in cross-border disputes – may still give rise to significant legal and practical challenges.

There is also an inherent tension.  While CPR 31.12A is designed to promote efficiency, it may in some cases add an additional layer of process.  Parties may be required to make requests which are unlikely to succeed, simply to demonstrate that reasonable steps have been taken before pursuing more formal relief.

The procedural mechanics are also not yet clear. It remains to be seen:

• whether orders will require formal applications or be made routinely as part of case management directions;
• how formal a request must be to satisfy the rule;
• what follow-up steps will be expected if a request yields no response; and
• what consequences will follow from non-compliance.

These uncertainties mean CPR 31.12A may, at least initially, introduce additional complexity rather than reducing it.

Conclusion: a modest rule, a meaningful signal

CPR 31.12A does not transform the law of disclosure.  The core principles remain unchanged, and the established mechanisms for party and non-party disclosure continue to apply.

But the rule sends a clear signal.  Parties are no longer likely to be permitted to treat third-party documents as outside the scope of their responsibilities.  Where relevant material may exist and can realistically be obtained, the court will expect steps to be taken.

The “new frontier” of disclosure is therefore not defined by a new category of documents, but by a change in approach.  Disclosure is no longer confined to what sits within a party’s own systems.  It requires parties to engage with the wider landscape of the dispute — early, pragmatically, and with proportionality in mind.

For litigants, the takeaway is straightforward: a disclosure strategy which looks only inward is unlikely to be sufficient.  The question is no longer simply what documents you have, but what documents you can obtain — and whether you have taken reasonable steps to do so.

If you would like to discuss the contents of this article further, please contact Anna Maxwell.