The Dekagram: 2nd March 2026

This week marks Charlie Stonehill’s inaugural Dekagram article; we welcome Charlie to the team. In an indication of how keen he is to get cracking, Charlie has tackled the perennial problem posed by third party disclosure, and brings us bang up to date on the latest amendment to the Civil Procedure Rules on the topic. Meanwhile regular contributor Ben Rodgers considers when it’s necessary to call an ambush an ambush.

An Update to Third Party Disclosure Rules in Civil Litigation

Third party disclosure in civil claims can often provide vital supporting evidence for either side of litigation. Police accident records may identify witnesses of a road traffic accident who may be able and willing to provide an account of what they saw. Hospital records may support or undermine a claim for injuries. Bank statements, employment records, telephone logs, the list of potential disclosures is wide and varied.

However, there is a difference between some third-party material being within the litigating parties’ control (as defined in CPR 31.8) and therefore subject to standard disclosure, and material within the sole control of the third party, which requires an application satisfying the narrow test at CPR 31.17. For instance, in Turner v Sheffield Teaching Hospital NHS Foundation Trust [2023] EWHC 3452 (KB), where the Healthcare Safety Investigation Board was ordered to disclose transcripts of interviews with midwives following an incident which gave rise to a negligence claim. Or in Sarayiah v Royal and Sun Alliance PLC [2018] EWHC 3437 (Ch), where the applicant sought disclosure of telephone recordings between the respondent insurer and another whom he had accused of harassment.

This can present an issue for parties where third-party disclosure is required, but it is not within the control of the litigant, nor is it a case where CPR 31.17 can be satisfied. This article will look at the current framework, and how the amendment of CPR 31.12A may bridge the gap to obtaining relevant third-party material.

The Existing Framework

Applications for third party disclosure in civil litigation are currently governed by CPR 31.17(3). The court has discretion to make a disclosure order against a non-party, but only if it is satisfied that:

1. The documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings

AND

• Disclosure is necessary in order to dispose fairly of the claim or to save costs.

The threshold for the “relevance” test at 31.17(3)(a) is relatively low; it will suffice that the documents will be disclosable if they “may well” support or adversely affect a case (Three Rivers DC v Bank of England [2002] EWCA Civ 1182). Indeed, it is for the applicant to set out the class of documents requested, and that each document meets the relevance test. In other words, it should not be for the third party to determine which documentation meets the test, and that which does not. However, when considered alongside the higher second limb of “necessity,” succeeding in such applications becomes more challenging for litigants. The combined test narrows the scope for such an order, hence why third party disclosure should be the exception rather than the rule (Frankson v Home Office [2003] EWCA Civ 655).

Civil Procedure (Amendment) Rules 2026

As of 6 April 2026, rule 31.12A will be implemented into the civil procedure rules:

“Ordering a party to request another person to disclose a document

31.12A The court may order a party to request any person to produce for disclosure and inspection any document which may support the case or adversely affect the case of any party to the proceedings.”

Whilst this rule does not compel a third party to disclose the requested material, it does provide the court with an alternative, and potentially more appealing, route to third party disclosure. The rule will place an obligation on the parties to ensure that they have made the request of the third party, and it removes the narrow and high bar of “necessity” currently required under CPR 31.17.

Implications of the CPR Amendment

In McLaren Indy LLC & Anor v Alpa Racing USA LLC & Ors [2025] EWHC 1825 (Comm), an application was brought by the claimants under PD 57AD.21.3 for disclosure of third-party contracts which had been mentioned in the witness statement of a defence witness. Those contracts were not in the control of the Defendant, and the witness who had mentioned it was outside of the jurisdiction. At paragraph 22 of his judgment Mr Justice Picken held that the court did not have the power to make an order requiring a party to use “its best endeavours” to obtain the material held by third parties, as the Claimant had sought here. Had CPR 31.12A been available, the Court could have made such an order by requiring the Defendant to request the disclosure of the contracts from the third-party. Those contracts would then fall within the Defendant’s control, and subject to standard disclosure obligations under CPR 31.8. Similarly, one of the issues in this case was the Defendant being outside of the jurisdiction, which may have impeded the prospects of a CPR 31.17 application. A CPR 31.12A order would have circumvented this issue, and similar issues over the Court’s jurisdiction, by delegating to the parties to resolve the issues.

In Morgan-Rowe v Woodgate [2023] EWHC 2375 (KB), the Defendant appealed on the grounds that the trial judge ought not to have found the Claimant to be impecunious due to disclosure failings, namely that statements of bank accounts belonging to the Claimant’s spouse had not been disclosed. Those statements did not form part of standard disclosure as they were not in the Claimant’s control [44]. Furthermore, there was no application under CPR 31.17 against the Claimant’s partner. There may have been strategic reasons for not applying under CPR 31.17, as speculated at [46], that the Defendant did not wish to take the risk that the disclosure would have bolstered the Claimant’s case. Be that as it may, had CPR 31.12A been available, the Defendant could have invited the Court to make an order in the initial disclosure directions for the Claimant to request the statements from her partner, without the requirement of making a formal, evidence-supported application and meeting the current high threshold of CPR 31.17.

Comment

It is uncertain at this stage whether the knock-on effects of CPR 31.12A will be positive or negative. On the one hand, there is a clear benefit in having a streamlined process, placing the obligation on parties to seek disclosure that meets the “may support or adversely affect” threshold, rather than the higher bar of “likely to support or adversely affect, and necessity.” Furthermore, unlike CPR 31.17, it is not apparent that orders will require formal applications supported by evidence, and indeed may form part of the standard case management and directions process, saving time and costs of litigation.

However, as with any amendment, there are question marks over its proposed efficacy. The third party will be under no obligation to disclose material. Indeed, they may choose not to disclose it if it they deem the material is too costly or time consuming to gather. Presumably, that will then leave parties back at the hands of CPR 31.17; if a lower threshold is required, it’s entirely foreseeable that parties may find themselves successful in obtaining more orders under CPR 31.12A, only for a Court to determine later that the test of CPR 31.17 is not met. It is likely that CPR 31.12A will occupy the middle ground, where uncontroversial and mainstream disclosure of third-party material can be obtained without the costly and time-consuming input of the Court. It is inevitable that disputes in relation to more contentious third-party material will remain.

It is also yet to be seen how the Court will enforce compliance with this rule. Will a formal witness statement need to be given with a statement of truth, or will an email enquiry suffice? Will there need to be subsequent requests if the initial request complied with a court order, but any disclosure was either not forthcoming or incomplete? How many enquiries must be made? What sanctions will there be for non-compliance? Will these types of issues cause, rather than solve, more problems for litigants?  Only time will tell.

About the Author

Charlie Stonehill was called in 2021 and joined Deka after successfully completing pupillage in January 2026. He now undertakes work across all of chambers’ practice areas. In his spare time he enjoys participating in and attending sport, music performances, and theatrical productions; and enjoying good food.

Kerry Middleton v. Carnival plc [2026] EWHC 235 (KB)

This recent judgment is about cooperation between the parties during the closing months of a multi-track personal injury claim.  It does not establish any principle.  But it reminds us of how tricky it can be to keep both eyes on the trial, while at the same time collaborating with our opponent to settle the claim by ADR.

The Claimant worked aboard the Defendant’s cruise ship.  While the ship was docked in Cádiz, she slipped on a wet floor in the heads (oh alright, the toilets).  Liability is admitted and it is agreed that the Claimant developed a functional neurological disorder (FND).  The Claimant says the claim is worth £10m and the Defendant says it is worth £25k.  This issue remains to be tried.  (So if you’re a King’s Bench judge or deputy, don’t read this article!)

It was to be tried over 8 days starting in late January 2026.  In October 2025, just after the last expert evidence had been exchanged, but only 3 months before trial, the Defendant served surveillance videos which they’d had in their possession for a time.  As sometimes happens with surveillance videos, the Claimant’s representatives couldn’t see that they particularly undermined her case. They told the Defendant’s representatives not to send the videos to the experts.  They requested information about the surveillance operatives.  They stated that the Claimant “reserved her position”.  In November, the Claimant served her £10m schedule and the Defendant served its £25k counter-schedule.  The Claimant served, on a WP basis, 8 witness statements from family and friends, dealing with the surveillance videos.  In December, the parties attended a JSM which failed.  The next day, the Defendant applied to court for permission to rely on the surveillance videos.

The application was heard ten days before the trial was due to start.  The parties agreed that, if the surveillance videos were admitted into evidence, the trial would have to be adjourned.  The Defendant submitted that the surveillance videos showed the Claimant much more mobile than Dr Munglani, the pain expert, had found her to be on examination.  The Claimant objected to the admission of the surveillance on the basis that it had been served far too late.

Tim Moloney KC, sitting as a deputy High Court judge, allowed the surveillance in.  As regrettable as it was to lose an 8-day trial listing, it would be more regrettable to exclude surveillance evidence which would otherwise be admissible.  In the judge’s judgment, the Claimant’s first reaction to the service of the surveillance videos in October should have been to say, “there’s no way we can have a trial in January if you’re going to rely on this.”  Given the cooperation between the legal teams throughout the life of the case, it wasn’t fair to call it an ambush by the Defendant.  The Claimant had, by not saying this upon receipt of the surveillance videos, lulled the Defendant into losing the first 2 months of the 3 months before trial.  The first time the Claimant had unequivocally said to the Defendant, “you’ll need to make an application to the court,” was at the JSM, a month before trial – by which time it was too late to save the trial listing.  If the parties had jumped to the task of getting the surveillance viewed by the experts as soon as it was served, the trial could have gone ahead in January.  So the judge thought.

If you don’t shout, “ambush!” as soon as you’ve been ambushed, you may lose the right later to shout “ambush!”

About the Author

Ben Rodgers was called in 2007 and now specialises in personal injury work with an emphasis on accidents abroad, including maritime accidents (he is himself an excellent sailor). He is listed for personal injury in the Legal 500, where he is said to be ‘go-to counsel for complex liability disputes; calm and composed, but will fight ferociously when required.’