A recent decision of the High Court shows the importance of understanding the scope and effect of CPR 31.22(1). This rule prescribes the circumstances in which collateral use of documents disclosed by your opponent in litigation is permissible.

In this decision Mr Justice Andrew Barker was sharply critical of ECU's solicitor for engaging in "perfectly obviously prohibited collateral use" by providing a journalist with a copy of his own witness statement, which contained information derived from documents disclosed by HSBC, his client's opponent, by way of pre-action disclosure.

ECU sought permission to make use of documents which HSBC had provided by way of pre-action disclosure. It sought permission, both prospectively and retrospectively, to use them in various ways. 

ECU's solicitor had filed a witness statement in support of ECU's application for an order for pre-action disclosure (but which was later disposed of by consent). The witness statement included a detailed description of some of the contents of documents disclosed by ECU, and conclusions that ECU said could be drawn from them. ECU's solicitor had provided a copy of this witness statement to a journalist.  The court had to consider whether this, along with other collateral uses, constituted a breach of CPR 31.22(1).

Retrospective permission for collateral use

CPR 31.22(1) provides that disclosed documents may only be used for the purpose of the proceedings in which they are disclosed. The three exceptions to the rule are: where the document has been read or referred to at a public hearing, the court has given permission, or the disclosing party and the person to whom the document belongs agree to the subsequent use. 

Both parties agreed that the judge had the power to grant permission retrospectively in respect of a prior use of disclosed documents in breach of CPR 31.22(1). However, the judge emphasised that, in determining whether or not to grant such permission, a "very important" factor would be whether permission would have been granted prospectively if it had been applied for. Indeed, it would be "very rare" for permission to be granted retrospectively where the court would not have granted such permission if it had been sought prospectively. 

No permission granted

Although ECU succeeded in its applications in respect of some past and prospective uses of HSBC's documents, the judge said that "nothing… [could] be said to soften the criticism of the ECU, and of [ECU's solicitor]" in relation to the disclosure of the witness statement to the journalist. ECU had tipped off the journalist without prior notice to HSBC or the court, and it was "not easy to see why [this tipping off] was not itself a breach of CPR 31.22(1)". Furthermore, the journalist was then actually provided with a copy of the witness statement by ECU's solicitor, despite the fact that he had previously told her that she would need to make an application at court to obtain it.

The judge dismissed ECU's argument that the statement was provided with a view to enabling fair reporting of the application hearing, as that disclosure "directly undermined the right and ability of the court to manage these proceedings". Further, he criticised ECU's solicitor for failing to attempt to remove the story which was subsequently published for 5 months after it originally appeared online. 

Overall, this was a "very serious breach [of CPR 31.22(1), which was] neither sensibly explicable nor remotely excusable", and ECU's application to grant retrospective permission was refused. 

Comment

This decision is a stark reminder to litigants and their advisers of the importance of appreciating the rules relating to collateral use of disclosed documents, and the overall effect of those rules.

The restrictions on collateral use of documents apply equally to information derived from the documents as to the documents themselves – something which appears not to have been appreciated by the solicitor in this case. This is why retrospective permission was refused in relation to the disclosure of the witness statement to the journalist. A party in receipt of disclosed documents may be prevented from using a document which it has created if this new document contains information derived from the disclosed documents, or which draws conclusions from them. 

ECU Group Plc v HSBC Bank Plc [2018] EWHC 3045 (Comm)

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