High Court takes strict approach to when permission needed for collateral use of documents disclosed in proceedings

The High Court has recently considered the restrictions on collateral use of documents and witness statements disclosed in proceedings, and has provided guidance on what constitutes "use" in this context: Robert Tchenguiz and Another v Grant Thornton UK LLP and Others [2017] EWHC 310 (Comm).

The position under CPR 31.22 (in relation to documents generally) and 32.12 (in relation to witness statements) is that a party may only use a document for the purpose of the proceedings in which it is disclosed, subject to certain exceptions including where the court gives permission.

In the current case, the defendants submitted that a document is "used" in subsequent proceedings only when a party actually seeks to rely on it, for example by referring to the document in a statement of case or by including it in the trial bundle. The High Court disagreed, instead favouring a broad interpretation of "use", which would encompass anything from the review of previously disclosed documents for relevance to other proceedings to the actual deployment of those documents in the subsequent proceedings.

The decision suggests that parties and their advisers may not even review disclosed documents for the purpose of considering or advising on whether other proceedings would be possible, or whether the documents might be useful for other proceedings, without first obtaining the court's permission. This is a very restrictive approach and contrasts with suggestions in previous High Court decisions (though without deciding the point) that it might not involve a breach of the rules to pass disclosed documents to a separate team of lawyers to advise on their possible relevance to separate proceedings. 

Thomas Jennings, an associate in our disputes team, considers the decision further below.

Background

The current proceedings form part of and are ancillary to a large and complex commercial dispute in relation to the management of assets held under trust for the benefit of members of the Tchenguiz family. Various documents were disclosed in the context of this broader dispute and remained in the possession or control of one or more of the defendants.

The use of documents disclosed and witness statements served in earlier proceedings is governed by CPR 31.22 and 32.12 respectively. Broadly, the position is that documents disclosed in earlier proceedings can only be used in subsequent proceedings where:

• the document has been read or referred to at a public hearing;
• the court has given permission; or
• the parties who disclosed the document / to whom the document belongs have agreed.

In the current case, the defendants submitted that "use" involved the actual deployment of (or reliance on) documents and that disclosure would therefore represent a process that is preliminary to use: "it makes documents available for use by all parties, but does not itself entail a use".  Accordingly, the defendants requested that the High Court make a declaration confirming that the following conduct did not amount to "use" for the purposes of CPR 31.22 and 32.12:

• the review of documents and witness statements for relevance;
• the listing of material in order to give disclosure;
• the provision of material to the other side for inspection; and
• the inspection of documents so as to ascertain whether to rely on or otherwise make use of that material in the current proceedings.

The defendants argued that that the mere review of documents by a party and its legal representatives should not be treated as "use" since it only represents a "negligible interference with the privacy of the creators or owners of the documents/statements". In addition, the defendants emphasised that since they were under a legal obligation to give disclosure in the current proceedings, the conduct in respect of which they sought a declaration was not voluntary. In the defendants' submission, these were both factors that pointed towards a narrow interpretation of the term "use".

Decision

The High Court (Knowles J) held that the conduct in question did amount to "use" for the purposes of CPR 31.22 and 31.12. However, in the circumstances, he was satisfied that he should grant permission to the defendants for such use.

There was no clear authority on the question of whether "use" in the context of CPR 31.22 and 32.12 requires the actual deployment of or reliance upon the documents in question. Knowles J considered that it was possible to answer the matter simply, by applying the words of the relevant rules.

Both CPR 31.22 and 32.12 make clear that, without the consent of the other party or the permission of the court, use of a document for any purpose other than the proceedings in which it was disclosed is prohibited. Knowles J commented that the wording of the rules allows "no room for the argument that use for a purpose is not 'use' because the purpose is, for example, benign or inspired by practicality or not what should be prevented" – though he observed that all of those situations might lead the court readily to grant permission for use.

Whilst Knowles J accepted that the impact of the review may only be negligible in the present proceedings, he noted that the interference in another case (and for different purposes) could be far greater. If the review of documents did not constitute "use", then a review for any purpose would fall outside of the collateral use protections – even, for example, a review for commercial purposes where the reviewer and owner were competitors. This, in Knowles J's judgment, could not have been the intention of the rules.

Although the mandatory nature of the duty to give disclosure was a relevant consideration when permission for use was considered, it did not affect the question of whether permission was needed.

Knowles J accepted that certain "very limited" activities are impliedly permitted under the rules. These are the use of a document for the purposes of: (i) assessing whether the document has been read or referred to at a public hearing; (ii) seeking permission of the court; or (iii) seeking the agreement of the other party.

The implied permission would not, however, extend to a review of documents with a view to deciding whether to actively make use of those documents in separate proceedings. As the judge said, if the purpose of the review was "to advise on whether other proceedings would be possible or would be further informed", then the review would be a use for a collateral purpose. In contrast, if the purpose of the review was to advise on the litigation in which the documents were disclosed, but when undertaken the review showed that other proceedings would be possible or would be further informed, that would not be a review for a collateral purpose (but any subsequent step in relation to those documents would amount to collateral use). 

Comment

As noted above, this is a very restrictive approach, which the judge noted did not go as far as some parties would wish, including perhaps the author of Hollander, Documentary Evidence (12th edition) which states at 27-06:

"It is surely inherent within CPR r.31.22 that a party's existing legal advisers must, without making any application under CPR 31.22, be able to read disclosed documents and advise on potential collateral proceedings (criminal or civil) which might arise from those documents. That advice surely does not constitute collateral use – indeed that was the conclusion reached by Eder J [in Tchenguiz v SFO [2014] EWHC 1315]."

In another decision in the same case, Tchenguiz v SFO [2014] EWHC 2379, Eder J said there was "considerable force" in the argument, and it "may well be right" to say that permission was not needed to pass disclosed documents to a separate team of lawyers to advise on their possible relevance to separate proceedings. However, that point was not raised in the application notice; the application was formulated and had proceeded on the basis that permission was needed, and so the judge dealt with it on that basis.

In light of the contrasting decisions at first instance, and the judge's clearly stated conclusions in the present decision, it would be prudent for parties and their legal advisers to obtain the court's permission for any review aimed at advising on the possibility of separate proceedings or the potential use of the documents for those proceedings, at least until any authoritative guidance is available from the higher courts.