If a party believes that the disclosure given by the disclosing party is inadequate a party may apply for an order requiring specific disclosure under CPR rule 31.12(1).
CPR rule 31.12(2) provides that an order for specific disclosure is an order that a party must do one or more of the following things:
- disclose documents or classes of documents specified in the order;
- carry out a search to the extent stated in the order;
- disclose any documents located as a result of that search.
The wording of the CPR is clear in that an application for specific disclosure can only be made against ‘a party’ and, therefore, an order for specific disclosure against a respondent will only be effective if the document required is in their possession or control (CPR rule 31.12(2)).
A document will be in control of a party if:
- it is or was in his physical possession;
- he has or has had a right to possession of it; or
- he has or has had a right to inspect or take copies of it. (CPR rule 31.8(1))
As such, when documents belonging to a party are being held by a third party those documents are subject to be disclosed under Part 31 by virtue of the party having a right to possess those documents. However, documents held by a third party will fall outside the scope of Part 31 if those documents belong to the third party North Shore Ventures Ltd v Anstead Holdings Inc  EWCA Civ 11 Per Toulson LJ at .
In the event that the applicant requires disclosure and inspection of a document held by a third party, and the disclosing party does not have control of the document by having a right to possess it, in most circumstances the most appropriate course of action would be to make an application for non-party disclosure under CPR rule 31.17.
The court may make an order for non-party disclosure if:
- the documents are likely to support the case of the applicant or adversely affect the case of one of the other parties to proceedings; and
- disclosure is necessary in order to dispose of the claim fairly or to save costs.
It is important to note that a court will not make an order for non-party disclosure unless both criteria are satisfied. Even if both criteria are satisfied, the court still has a discretion to decide whether it ought to order disclosure from a non-party.