A stark reminder of the restrictions on collateral use of disclosed documents, including information derived from them

The High Court has delivered a strong message as to the need for litigants to appreciate the rules relating to collateral use of disclosed documents, under CPR 31.22: The Ecu Group Plc v HSBC Bank Plc [2018] EWHC 3045 (Comm). Some key points to note from the decision are:

• The restrictions on collateral use apply to information derived from disclosed documents, just as they apply to the documents themselves. A party who is in receipt of disclosed documents may therefore be prevented from using a document it has itself created, where that document reveals the contents of the disclosed documents or draws conclusions from them. So for example, in this case, it was a breach of CPR 31.22 for the claimant to disclose to a third party its own witness statement prepared for a further pre-action disclosure application, where it included a detailed description of of some of the contents of the disclosed documents.
• The restrictions will prevent a party using disclosed documents (or information derived from them) in briefing its own lawyers, if that is for some purpose other than the proceedings in which the documents were disclosed. So, if the purpose is to obtain advice about other potential proceedings to which the documents may be relevant, that will be a breach of CPR 31.22 (unless the court's permission is obtained). If however the purpose is to obtain advice about the proceedings in which disclosure was given then there is no breach. This is similar to the court's approach in Tchenguiz v Grant Thornton UK LLP [2017] EWHC 310 (Comm), considered here.
• The court may grant permission retrospectively, but may impose conditions to ensure that the party who was in breach does not obtain any advantage from using the documents for the improper purpose. In the present case, for example, the court granted retrospective permission to a party who used disclosed documents to obtain advice on potential US claims, but on the condition that the US lawyers' retainers were terminated and their advice was not provided to anyone else (including any other US lawyers that might be instructed) without the court's permission.
• The restrictions apply to documents provided by way of pre-action disclosure under CPR 31.16 just as they apply to documents provided by way of disclosure in the action.

Background

CPR 31.22 provides that disclosed documents may be used only for the purpose of the proceedings in which they are disclosed, except 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 present case, the defendants had provided documents to the claimant by way of pre-action disclosure. The claimant's solicitor made a witness statement to support an application for a further order in relation to pre-action disclosure, which was disposed of by consent. The witness statement included a detailed description of some of the contents of the disclosed documents and conclusions the claimant said should be drawn from them. The claimant's solicitor provided a copy of the witness statement to a journalist, who published a story based on its contents.

The claimant's legal team's analysis of the disclosed documents, and the conclusions drawn from them, were also shared with US attorneys so that they could advise on the availability of claims in the US against various entities and individuals related to the defendant. The disclosed documents themselves were not provided, save that a USB stick containing the documents was provided (but not accessed) pending any decision as to permission to use the documents.

The claimant applied for retrospective permission for these prior uses of the disclosed documents, as well as prospective permission to use the documents for the purpose of:

• Considering whether to join a related company of the defendant as a co-defendant to the proceedings, and communicating with clients or former clients of the claimant as to whether they might join as co-claimants. These uses were ultimately agreed by the defendant.
• Obtaining US legal advice in respect of potential US proceedings against various parties related to the defendant.

Decision

The High Court (Andrew Baker J) refused prospective permission for the purpose of obtaining US legal advice in respect of potential US proceedings. He granted retrospective permission for the prior use of the documents to obtain US law advice, subject to various conditions, but refused permission for the prior use in disclosing the witness statement to the journalist.

Prospective permission

The judge commented that, if it had been necessary to rule on the application for permission to use the documents to consider whether to join further claimants/defendants he would have taken the view that permission was not required. In this regard, he referred to Grosvenor Chemicals Ltd v UPL Europe Ltd [2017] EWHC 1893 (Ch), considered here, in which the court held it is not a breach of CPR 31.22 to use disclosed documents to raise new causes of action in the same proceedings, including causes of action involving those who are not currently parties but could properly be joined.

The judge refused the application for permission to use the documents to obtain advice in respect of potential US proceedings, particularly on the basis that the claimant appeared to be able (if so advised) to include in the present proceedings any claims it might want to make against the US defendants. The judge noted that the claimant had liberty to apply if there were a material change of circumstance, such as if a difficulty emerged in relation to the English court's jurisdiction over those defendants.

Retrospective permission

The judge noted that it was common ground that he had power to grant permission retrospectively under CPR 31.22. In determining whether to grant permission, an important factor would be whether permission would have been granted prospectively if applied for. In practice, he commented, it would be very rare for permission to be granted retrospectively if it would not have been granted prospectively.

US advice

In relation to the use of the disclosed documents in obtaining US advice, the judge referred to the defendant's submission that the court should not contemplate any grant of permission retrospectively without much more detail as to the content of the US advice. The judge noted that the court could not order the claimant to waive privilege in the advice, but commented that a refusal to waive privilege might in some cases affect an applicant's ability to persuade the court to grant permission for use. Here, however, the judge said he felt able to judge the merits of the application on the evidence available, without the need for waiver.

The judge decided to grant retrospective permission largely on the basis that it would have been possible, on the facts of this case, for the claimant to obtain the same advice without a breach of CPR 31.22. The rule operates by reference to the purpose for which the documents are used. Here there was a breach because the purpose was to obtain advice in relation to potential US proceedings. However, it would have been perfectly permissible for the claimant, in deciding what claims to bring in the English proceedings, to investigate where else the claims could, in principle, be brought. If the purpose in obtaining the US law advice had been thus confined, the judge said, there would have been no collateral use.

In granting permission, however, the court imposed conditions to ensure that the improper purpose for which the US law advice was sought could not create an advantage for the claimant in the US if, in the event, any claim was pursued there. Most importantly, the claimant was required to terminate the US lawyers' retainers and could not instruct them again, nor could their advice be shared with anyone who had not already received it, without the court's permission.

Journalist

The judge was highly critical of the claimant's solicitor's conduct in disclosing the witness statement to the journalist. He accepted the solicitor's evidence that he had failed to appreciate that it would be a breach of CPR 31.22, but nonetheless described this as a "very serious breach, neither sensibly explicable nor remotely excusable". There was no prospect that the court would have granted permission prospectively, and there was no reason to grant retrospective permission.

Indeed the judge commented that "it was not easy to see why" it would not be a breach in itself for the solicitor to tip off the journalist about the application, and inform her that she would be very interested to read the witness statement, as had been done in this case - even if the statement had not ultimately been provided.

Costs

The court ordered the claimant to pay all of the defendant's costs of the application on the indemnity basis.