High Court rules on application for permission for collateral use of disclosed documents
In a judgment dated 9 November 2018, the High Court has provided a helpful reminder of the meaning of 'use' in the context of CPR 31.22(1) (the rule providing that a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed).
CPR 31.22(1) provides that "a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree."
In The ECU Group Plc v HSBC Bank Plc, HSBC Private Bank (UK) Limited & HSBC Bank USA, N.A.  EWHC 3045 (Comm), the applicant sought permission for collateral uses of disclosed documents (other than for the purpose of the proceedings).
Prospective permission for collateral uses was granted to the extent and on the terms agreed by the parties, and otherwise refused. With regard to retrospective permission sought for disclosed documents already used, the court looked at the issues in further detail.
The court's decision
It was common ground between the parties that the court has the power to grant permission retrospectively in respect of prior use of documents in breach of CPR 31.22(1) and that such permission will only rarely be granted. Baker J added that it would be very rare for permission to be granted retrospectively that the court would not have granted if it had been sought prospectively.
The court granted retrospective permission for use of disclosed documents in limited communications with UK and US authorities on the basis that permission would have been granted if sought prospectively, and the respondents had also indicated that they would be content for permission to be granted retrospectively if the court were minded to do so.
With regard to the use of disclosed documents in communications with US attorneys, it is relevant to note that the disclosed documents were not themselves provided to the US attorneys. However, in error, it had been thought that using knowledge of the content of the disclosed documents, or analysis or conclusions arising out of those documents was not 'use' falling within the scope of CPR 31.22(1).
In making very clear that such use of the disclosed documents was 'use' pursuant to CPR 31.22(1), Baker J referred to the judgment in Crest Homes plc v Marks  1 AC 829: "this must…clearly be right – that the implied undertaking applies not merely to the documents themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind". The court did grant permission in respect of the communications with US attorneys, but with terms attached "to mark the fact that use was in fact collateral use without permission…for which permission would not have been granted." The terms included that the US attorneys (i) be disinstructed; (ii) not be instructed again in relation to the subject matter of the proceedings; and (iii) that their advice would not be provided to anyone else at any stage.
With regard to the provision of a witness statement including detailed description of some of the contents of disclosed documents to a journalist, who wrote and published an article based on the witness statement, Baker J's position on the granting of retrospective permission in respect of this use of the disclosed documents was unequivocal, the use:
"was a very serious breach, neither sensibly explicable nor remotely excusable. There is no prospect whatsoever that the court would have granted permission for it had it been sought prospectively. I do not think a solicitor with a competent, basic knowledge of the rule against collateral use, or who took a cursory glance at the White Book commentary on CPR 31.22, could reasonably have advised otherwise. I see no reason at all to grant retrospective permission"
In light of the relative brevity of CPR 31.22(1), the court's decision in this case serves as a helpful reminder to all recipients of disclosed documents in the context of civil proceedings as to the limit of the 'use' that they are permitted to make of those documents.