In civil proceedings before the courts in England and Wales, "disclosure" is the stage in the proceedings when the parties to an action are required to inform each other of the existence of all documents that are or have been in their control and which are relevant to matters in issue in the litigation. The Civil Procedure Rules (which apply to most civil proceedings in England and Wales) refer to this process as "disclosure" although historically it was known as "discovery."

Not all proceedings will involve disclosure, the rules differ depending on the type of case and what division of the court it is brought in. There is no provision under the Civil Procedure Rules for automatic disclosure and the duty to disclose only arises if and when and to the extent that the court orders disclosure.

At present there are two main sets of rules governing disclosure. The first commonly involves an order for "standard disclosure," and this is an order requiring parties to disclose the following:

• Documents on which they rely
• Documents which adversely affect their case
• Documents which adversely affect another party's case
• Documents which support another party's case

The second set of rules are part of a "living" disclosure pilot scheme that is in operation until 31 December 2022 in the Business and Property Courts. This pilot is intended to promote a culture change and a move away from standard disclosure, focusing instead of different "models" of disclosure, aligned to each issue in the case that requires disclosure. The models vary, ranging from very limited disclosure (of known adverse documents only) to search-based disclosure.

In any case, the Civil Procedure Rules are clear that disclosure should be restricted to what is necessary in the individual case. The court retains discretion to dispense with or limit disclosure. The courts may be minded to exercise their discretion where the disclosure sought would be unduly expensive, inconvenient or troublesome in comparison to the likely forensic benefits. An overall factor of importance is proportionality.

The fact that a document has been disclosed does not necessarily mean that it may be inspected. As noted above, disclosure simply means stating that a document exists or has existed. While parties have a right to inspect documents that have been disclosed, this is not an unfettered right and there are exceptions which permit parties to withhold documents from inspection. Legal professional privilege is one such exception. Under the pilot scheme, inspection of disclosed documents is presumed, however it is still possible to withhold production of certain documents, including on the grounds of privilege.

Although disclosure between parties to proceedings is discussed here, it should be noted that non-parties to proceedings can also be subject to disclosure orders by the courts. However, the Civil Procedure Rules note that ordering disclosure against non-parties is the exception rather than the rule and that the jurisdiction should be exercised with caution.

Finally, it is worth noting that even where a document has been disclosed as part of litigation proceedings and inspected by a party, the use of that document is strictly limited to those proceedings only. The document cannot then be deployed in other proceedings without either the consent of the party whose document it is, or the permission of the court.