Using documents previously disclosed in earlier litigation
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The restrictions on the collateral use of documents previously disclosed in separate litigation have recently come under the judicial spotlight. The word ‘use’ has been defined extremely broadly to cover even the act of reviewing the documents for relevance to new litigation. Including the documents in a disclosure list and allowing inspection are also caught under such definition. A party holding previously disclosed documents and witness statements will need to consider whether it must seek the court’s permission to use them at a very early stage: (1) Robert Tchenguiz (2) Rawlinson & Hunter Trustees SA v (1) Grant Thornton UK LLP (2) Stephen John Akers (3) Hossein Hamedani (4) Johannes Runar Johannsson [2017] EWHC 310 (Comm).
CPR restriction on ‘use’ of disclosed documents and witness statements [KHCHeading4]
Certain documents and witness statements had been disclosed to one of the defendants (the defendant) during previous, separate, legal proceedings. When they were disclosed, the documents and witness statements were subject to the collateral use protections under the Civil Procedure Rules (CPR). These rules restrict the collateral use to which a party can put documents disclosed to it during litigation. CPR r.31.22 states that a party to whom a document has been disclosed may use it only for the purpose of the proceedings in which it has been disclosed, unless (a) it has been read or referred to at a public hearing, (b) the court gives permission, or (c) the party who disclosed the document and the person to whom it belongs agree. CPR r.32.12 provides the same for witness statements, except that it is the witness himself (rather than the party producing the witness statement) who must give permission under limb (c).
The defendant sought to establish what steps it could take in relation to the disclosed documents without breaching these CPR rules. It applied to the court for a declaration that the following steps did not constitute a ‘collateral use’:
- reviewing the documents and witness statements for relevance to the current proceedings;
- the inclusion of the documents and witness statements in a disclosure list;
- the provision of the same to the claimants for inspection; and
- the review of the material (by the claimants) upon its provision.
The defendant argued that for a document to be ‘used’ within the meaning of CPR r.31.22 or r.32.12, it was necessary that the using party sought to rely upon the document, for example by including it in a trial bundle in the new proceedings. Simply reviewing the documents for relevance, the defendant contended, was not a ‘use’ in this sense. Moreover, the defendant argued that it was bound to review all documents in its possession for relevance to fulfil its disclosure obligations.
Meaning of ‘use’ is very wide
The court found that all four steps constituted a ‘use’ and thus were restricted under CPR Part 31. ‘Use’ has a wide meaning in these provisions of the CPR, and the defendant was obliged to seek permission from the court even to review the documents and witness statements for relevance. Permission was granted.
The judge stated that the only – ‘very limited’ – use to which a previously disclosed document or witness statement may be put without coming under the scope of r.31.22 and r.32.12 is reviewing it to assess whether it falls under any of the exceptions to those rules: i.e. determining whether it has been read or referred to at a public hearing, seeking permission of the court to use it, or seeking the agreement of its owners to use it. Anything beyond this, including examination of the document by counsel in order to determine whether other proceedings would be possible or advisable, is a collateral use.
Comment
The judge’s decision in this case to adopt such a wide interpretation of the word ‘use’ in relation to r.31.22 and r.32.12 has the effect that a party’s ability to review or use a document which has been disclosed to him is very limited. In many respects this is not surprising. However, the decision means that, should subsequent proceedings arise which cause a party to recollect documents he has seen in earlier proceedings, he is not entitled even to re-read those documents to assess their relevance without the permission of the court or the documents’ owner (unless they have been read out in open court). This raises the somewhat absurd prospect of a party having to go through the delay and expense of applying to court for permission to review documents, only for those documents to turn out to be entirely irrelevant. A further issue is that any application for permission to review will entail the applicant explaining why permission should be granted, and without some basic analysis of the documents’ contents, this would seem to be a very difficult endeavour.
In reality, the permissible use of the documents (i.e. assessing whether the documents fall under any of the exceptions to the collateral use protections) may allow parties to form an early view on relevance too, but they will need to be aware that on this very strict interpretation, this could constitute a breach of the CPR. Litigants will also need to ensure that they factor in the timing implications of having to apply for the court’s permission in relation to any previously disclosed documents.
Further information
This case summary is part of the Allen & Overy Litigation and Dispute Resolution Review, a monthly publication. For more information please contact Amy Edwards amy.edwards@allenovery.com, or tel +44 20 3088 3710.