Non-Party Disclosure Gains a New Middle Route Under CPR 31.12A

Non-Party Disclosure Gains a New Middle Route Under CPR 31.12A

A new rule has quietly widened what the court can ask a litigant to do about documents held by outsiders. The Civil Procedure (Amendment) Rules 2026 inserted rule 31.12A into the Civil Procedure Rules, giving judges an express power that sits between standard disclosure and non-party disclosure. It came into force on 6 April 2026 and applies to how parties in England and Wales gather documents that may prove or disprove a claim.

For solicitors running recovery, fraud and commercial claims, the change carries weight because so much relevant material now sits outside the party who happens to be in the proceedings. Rule 31.12A gives the court a lighter tool to reach it.

The position before CPR 31.12A and non-party disclosure

The regime rested on two pillars. A party had to search for and disclose documents within its own control under rule 31.8, while material held by an outsider was pursued through non-party disclosure under CPR 31.17. That route requires the applicant to show the documents are likely to support its case or damage another party’s, and that disclosure is necessary to dispose of the claim fairly or to save costs. It is often contested and rarely quick.

Between those two pillars lay a gap. In Phones 4U Ltd v EE Ltd the Court of Appeal accepted that a party could be required to take steps to obtain material from devices held by its own employees and agents, because that fell within its control. By contrast, in Various Airfinance Leasing Companies v Saudi Arabian Airlines the court declined to order a party to use best endeavours to obtain documents from outsiders, and in McLaren Indy LLC v Alpa Racing USA LLC the High Court confirmed it had no power to compel a party to request documents from a third-party witness abroad. Relevant records could exist yet fall through the middle.

What CPR 31.12A now allows

The wording is short. 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. The order is aimed at the party, not the outsider, and it does not force the recipient of the request to hand anything over.

In practice the court can now direct a litigant to ask a former employee, an external adviser, a group company, a broker or a data host for documents, before anyone reaches for a formal application. A parallel change to Practice Direction 57AD folds the same idea into the disclosure rules that govern the Business and Property Courts.

Where CPR 31.12A sits alongside non-party disclosure

The new rule does not replace CPR 31.17. If the outsider refuses, the requesting party is back to the established non-party disclosure route, with its tests and its costs. What has shifted is the sequence. Courts are likely to expect the low-cost request to be made first, and a party that skips it may struggle to justify a contested application later.

 

What litigators should check

Identifying who holds relevant material has become part of early case assessment rather than a later disclosure chore. That means mapping former employees, advisers, agents and connected companies at the outset, and framing any request proportionately so it stands up to scrutiny if the matter escalates. Locating those custodians and the assets behind a claim is where investigative support earns its place.

Transitional position and what happens next

Rule 31.12A applies to proceedings from 6 April 2026, so it is already live in current litigation. Several mechanics remain untested: whether orders will be made routinely as case-management directions or on formal application, how detailed a request must be, and what follows if a request draws no response. Practice through the rest of 2026 will settle those questions.

If your case turns on documents and assets held outside your opponent, speak to Tremark’s asset tracing team and use the form below to get in touch.

Frequently Asked Questions

Does CPR 31.12A replace non-party disclosure under CPR 31.17?

No. It adds a preliminary step. If the person asked declines to produce documents, a party still has to use the CPR 31.17 route to compel production.

When did rule 31.12A come into force?

It came into force on 6 April 2026 under the Civil Procedure (Amendment) Rules 2026.

Who is the order directed at?

The order is directed at a party to the proceedings, requiring it to request documents from another person. It does not compel the outsider to comply.