Case Alert - [2017] EWHC 2631 (Comm)
Whether the claimant could use documents disclosed to it to see if separate proceedings could be brought
CPR r31.22 provides that a party to whom a document has been disclosed in the course of proceedings may use the document only for those proceedings (except where the document has been read in court, the court has given permission or the disclosing party agrees). This is known as the "collateral use" protection.
In this case, documents had been disclosed to the claimant by the defendant in one set of proceedings, and it applied to the court for permission to review those documents in order to investigate whether to seek permission to use those documents in separate proceedings against further parties.
In Tchenguiz v Grant Thornton the judge held that "In my judgment if the purpose of a review of documents that were disclosed in litigation is in order 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. ..If however the purpose of the review of documents disclosed in litigation was to advise on that litigation, but when undertaken the review showed that other proceedings would be possible or would be further informed, then (i) the review would not have been for a collateral purpose, (ii) a further step would be a use for a collateral purpose, but (iii) the use of the document for the purpose of seeking permission or agreement to take that further step would be impliedly permitted".
The judge in this case, Teare J, held that the claimant's receiver did not have power to make the application. Nevertheless, he went on to consider whether the application should have been granted had the receiver had power to make it. He noted that prior caselaw has established that, in the absence of injustice, the public interest in facilitating the investigation of criminal offences will take precedence over the public interest of encouraging disclosure of material documents. He held that it made no difference that the claimant was not a public body charged with the investigation and prosecution of criminal offences: "there is a strong public interest in facilitating the just resolution of civil litigation".
Nor did it matter that the claimant could not have brought an action under CPR r3.16 (for a pre-action disclosure order) or CPR r3.17 (for a third party disclosure order) to obtain the documents because the relevant third party is resident out of the jurisdiction: "in circumstances where the documents are already in the [the claimant]'s possession and the application is simply to review them I do not consider that the non-availability of applications under CPR 31.16 and 17 requires the review application to be denied if there are otherwise good reasons for making the order sought". Accordingly, he would have granted permission to review the documents.
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