Non-party disclosure: a new path

Those having anything to do with litigating claims made pursuant to Regulation 15 of The Package Travel and Linked Travel Arrangements Regulations 2018 will know the frustration of trying to obtain documents which are not within the possession or control of a party. Most commonly it is the defendant tour operator that is affected by the lack of documentation. However, there are many occasions when a claimant requires documents to assist with their claim that are outside the possession or control of the parties. A new provision in the Civil Procedure Rules, rule 31.12A is a potentially welcome addition in arsenal of travel lawyers.

The new rule, which came into force on 6^th April 2026, provides as follows:

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 new rule comes into force to deal with the difficulty identified in the decision McLaren Indy LLC & Anor v Alpa Racing USA LLC & Ors [2025] EWHC 1825 (Comm). In that case contracts/sponsorship agreements (that were in the possession or control of a third party) were mentioned in witness evidence and the issue was whether the Court could order disclosure. It was held that the Court had no jurisdiction to make an order for disclosure of the contracts/sponsorship agreements in question.

At first glance, the new rule has much to commend it. Normally, the main issue in obtaining documents in the possession or control of, say, a Spanish hotel, is the fact that the non-party holds documents that are outside of the jurisdiction. Of course, where documents are held in the jurisdiction by a non-party resident outside of the jurisdiction, then there is no obstacle to a non-party disclosure application or order, as confirmed by Males LJ in Gorbachev v Guriev & Ors [2022] EWCA Civ 1270. The new rule being based on voluntary production is free from arguments about whether it would be appropriate to make an order where the non-party holds the documents outside of the jurisdiction.

There is now a clear mechanism by which a party can seek to obtain relevant documents that are outside the possession or control of the parties. However, whereas a non-party disclosure order requires documents to be produced, CPR r.31.12A does not actually require the documents to be produced, or where they no longer exist or are under third party control require what has happened to the documents to be indicated. This significantly weakens the effectiveness of an order pursuant to CPR r.31.12A. It is open to defendant tour operators to seek to prevent an application for an order pursuant to CPR r.31.12A by requesting relevant documents from the relevant travel service provider(s) upon during the initial response period to a claim and communicating to the claimant(s) that such a request has been made. Such relevant documents can be gleaned by scrutinising the inevitable list of documents sought by the claimant(s) against the issues or likely issues in the claim.

The new rule obviously has the potential to reduce the complexity of disclosure arguments between the parties that centres on the issue of ‘control’ of a document. However, regrettably, it is unlikely that such arguments will be completely avoided. Given that an order pursuant to CPR r.31.12A does not compel production of documents, such arguments, for example, the extent of a defendant tour operator’s contractual right to inspect or take copies of documents, will likely continue. That said, any claimant now has a viable alternative to include in any disclosure application where documents are clearly not in the physical possession of a defendant tour operator.

Conclusion

Whilst the new rule clearly has some benefit, it is not a complete solution. It sets a particularly low bar in only requiring the party against whom the order is made must ‘request’ the production of relevant documents. Clearly, had the rule been framed to create a requirement to ‘use best endeavours’ or ‘take reasonable steps to secure’ documents for production, then the new rule would genuinely have changed the disclosure landscape. It is likely that there is scope for future reform of CPR r.31.12A to promote its effectiveness, and such reform is strongly encouraged.