High Court reinforces the limits of disclosure challenges under PD 57AD

In a judgment handed down on 9 March 2026 in Crane Bank Ltd v DFCU Bank Ltd [2026] EWHC 522 (Comm), the Commercial Court ruled on a wide-ranging application concerning alleged breaches of disclosure obligations under CPR Practice Direction 57AD in litigation arising out of the acquisition of Crane Bank Limited (CBL) by dfcu Bank. The decision provides guidance on what needs to be established to raise a challenge of non-compliance for disclosure obligations.

Here we summarise key points from the decision.

“May have been” non‑compliance is sufficient to trigger a challenge

The Court rejected dfcu’s argument that an applicant must show, on the balance of probabilities, actual non‑compliance with an existing disclosure order. The court confirmed this submission was in contrast to the clear language of the Practice Direction which states “where there has been or may have been a failure to adequately comply.” Guidance on what needs to be established is also given in Matthews and Malek, Disclosure which confirms ‘At the very least there must be more than a general suspicion that there has been non-compliance with an order for Extended Disclosure.’ (See Disclosure, 6^th Edition, Hodge M. Malek and Paul Matthews, Sweet & Maxwell, 2023).

Low number of documents does not always mean non-compliance

The decision reiterates previous guidance which confirms that just because limited documents have been disclosed does not result in an automatic rule that there has been non-compliance with the disclosure order. However, the courts recognise that there ‘are some cases, where it is so obvious that documents of a certain type or kind must exist, that the failure to produce such document gives rise to an inference that the disclosure process has failed or is deficient.’ Agents’ Mutual Ltd v Gascoigne Halman Ltd [2019] EWHC 3104 (Ch), at [13(i)]. 

Paragraph 18 of PD 57AD sets a higher bar
Whilst not in dispute in this case, the court noted that it is harder to obtain an order under paragraph 18 - where a party wants to change the scope of disclosure already ordered - because the applicant must show not only that the order is reasonable and proportionate but also that varying the original order is “necessary for the just disposal of the proceedings” It assumes the original order was complied with but is said to be insufficient. Whereas Paragraph 17 - failure adequately to comply with an order for Extended Disclosure - is engaged where there has been, or may have been, a failure to comply with an existing order for Extended Disclosure.

Limits on fishing for explanations of searches
The Court declined to order multiple requested witness statements explaining search methodologies, missing documents, searches of specific computer drives, or third‑party document retention policies. Absent evidence suggesting non‑compliance, the Court was unwilling to require parties to justify their disclosure exercise in granular detail or to provide evidence merely to enable the opposing party to “test” compliance. 

Practical takeaways

• The Court continues to enforce PD 57AD robustly, resisting over‑lawyering of disclosure disputes.
• Courts continue to expect cooperation between parties but will not compel exhaustive explanations of searches absent a real basis for concern.
• The fact that there has been a low number of documents does not trigger an automatic inference that there has been non-compliance. Applications under paragraph 17 of PD 57AD can be brought on the basis that there may have been a failure to comply but must be evidence‑led. Paragraph 18 applications have a higher threshold.

For more information about the law, technology and practice of disclosure, contact Tom Whittaker,  David Hine or Zac Bourne.

This article was co-authored by Tom Whittaker, Stacie Bourton, and Jacob Berger.