Disclosure in fraud litigation in England and Wales

Disclosure is a fundamental aspect of fraud litigation in England and Wales. Its primary purpose is to ensure that all relevant documents, whether helpful or harmful to a party’s case, are made available. This enables the court to reach decisions based on the full factual picture rather than selective evidence.

This process is widely regarded as one of the key advantages of the English litigation system. It is considered to promote transparency and fairness in the resolution of disputes. It sits in contrast with civil jurisdictions such as France or Germany, where the litigation procedure is more inquisitorial and disclosure obligations are limited.

The English disclosure process aims to strike a balance: it is comprehensive enough to prevent trial by ambush, yet structured under the Civil Procedure Rules 1998 (the CPR), to control scope and proportionality.

What is disclosure in fraud litigation?

Disclosure is designed to ensure that each party has access to the documents necessary to assess the strengths and weaknesses of its own and the other parties' cases. The intention is that this should happen well before trial, so litigants can present their own case and challenge the case of their opponent.

The definition of a document is very broad and includes both hard-copy and electronic documents and data sources. It includes information held digitally or electronically, communications (including WhatsApp and social media), photographs, and audio or visual recordings. As it encompasses anything in which information is recorded, it will also include less tangible digital footprints such as an internet search history and, with the increasing prevalence of AI, prompts and discussions with a large language model.

Each party has a duty to disclose all material documents, including documents which are helpful or adverse to their case. Parties must conduct a full and proper disclosure exercise. Failure to do so may lead to the draconian consequences discussed in more detail below.

Parties have a duty to preserve documents which are under their control and may be relevant to the litigation. That includes informing employees and third parties who may hold relevant documents, eg professional services providers such as accountants, that those documents must be retained.

Can documents be obtained before proceedings are issued?

A party anticipating court proceedings may obtain formal disclosure from a potential party or third party before court proceedings in the fraud claim have even started. There are several routes for doing so, including pre-action disclosure orders, interim orders for delivery up under the CPR, Norwich Pharmacal and Bankers Trust orders. See our note on obtaining evidence from third parties.

Pre-action disclosure orders can be made in relation to the same documents ordinarily disclosable in fraud proceedings. A party seeking third-party disclosure can therefore apply for the production of any document that is likely to support the applicant's case or adversely affect the case of another party.

This does not mean, though, that the court will allow a speculative fishing expedition, so requests must be targeted, narrow and proportionate. The applicant must still show that disclosure would assist in the fair disposal of the anticipated proceedings or save costs. If this can be shown, the court will exercise an overall discretion to balance the competing interests of the applicant and respondent.

Separate to the litigation process, it is also possible for individuals to submit data subject access requests to entities which hold the individual's personal data, in order to inspect the personal data that is held about that individual.

What happens during the disclosure process?

The disclosure phase of fraud litigation usually comes after the parties have produced their pleadings and after the case management conference, at which the trial timetable and parameters of disclosure are set.

Sometimes disclosure may happen earlier in proceedings. In the Business & Property Courts, which deal with commercial fraud cases in England, an additional phase of 'initial disclosure' is required, whereby supporting documents are provided when the parties serve their pleadings. In practice, in heavy fraud litigation, many parties agree to opt out of this phase and, in any event, it is not required in cases with more than a certain number of documents.

When undertaking the main disclosure exercise, parties have a strict duty to conduct a reasonable and proportionate search of all documents. This includes documents within a party's possession or control. The concept of 'control' extends beyond physical possession and includes documents previously held and those to which a party has a legal right of access, eg documents held by third parties. This obligation is ongoing, so if relevant documents are identified after the disclosure deadline, they must still be disclosed.

Certain categories of documents may be withheld from inspection, most notably those protected by legal professional privilege. This protects the fundamental right of any person to seek and receive legal advice on a confidential basis.

In practice, disclosure can be a formidable exercise. Large-scale fraud disputes often involve hundreds of thousands, if not millions, of documents requiring various stages of review for relevance. The entire process often requires engagement and coordination from an early stage between the party, its IT team, its legal advisers and e-discovery specialists. Later, the parties will need to liaise to try and agree disclosure proposals.

Due to the large volumes of data involved in the disclosure process, technology has been utilised to assist document reviews for many years. The next generation of AI-driven tools is now further transforming the English disclosure landscape, streamlining reviews through advanced analytics and machine learning. This is a rapidly evolving area, and legal teams comfortable with these technologies may hold a strategic advantage for their clients.

Once a review of a party's own documents has been carried out, the parties will exchange and receive the other side's disclosure. Time will then be of the essence to review and analyse these documents (using disclosure tools, including AI) to feed into and progress the party's case.

Can disclosed documents be used outside the proceedings?

Documents which have been disclosed in fraud litigation may only be used for the purpose of proceedings unless they have been referred to at a public court hearing. Otherwise, permission must be granted by the court, the disclosing party or any other owner of the document.

What happens if a party breaches their disclosure obligations?

Where a party fails to comply with its disclosure obligations, for example by failing to provide full disclosure, there may be serious consequences. The court may order remedial steps to ensure compliance, make punitive costs orders, draw adverse inferences or, in extreme cases, impose severe sanctions such as summary judgment or strike-out, effectively terminating the proceedings.

Specific disclosure

A party may make an application for specific disclosure if it believes the disclosure it has been provided with is inadequate. Specific disclosure is typically sought where there are concerns that the other party has failed to fully comply with its disclosure obligations, for example by failing to conduct sufficient searches or disclose relevant documents, including where there are concerns a document or category of documents is missing. If granted, the court may make an order requiring a party to disclose particular documents or categories of documents that are relevant to the issues in dispute.

To meet the rise and increasing sophistication of fraud, victims need powerful legal tools and lawyers who know how to use them. In this guide, we provide an overview of the key issues involved in fraud cases and outline some of the fraud litigation tools available in England.

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This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2026