The Commercial Court has ordered that the claimants should give advance notice to the defendant if they proposed to make collateral use of documents already disclosed.
The proceedings in question had been settled in July 2014. The Serious Fraud Office (“SFO”) subsequently applied for an order pursuant to CPR 31.22(2) restricting or prohibiting the use of certain documents previously disclosed in the proceedings. 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 the document has been read to or by the court, or referred to, at a public hearing which has been held in public. No party had indicated an intention to use the documents for any collateral purpose. However, the SFO wanted the claimants to notify it of any such intention, arguing that this was due to the strong public interest against collateral use of the documents, which were part of the SFO’s criminal investigation.
Eder J held as follows:
- The present situation was unusual, since none of the parties had indicated an intention to use the documents for a collateral purpose, and the documents did not fall within the “read to or by the court, or referred to, at a public hearing” exception in CPR 31.22(1).
- However, under CPR 31.22(2) the court could make make an order restricting or prohibiting the use of a document which had been disclosed, even where the document had been read to or by the court, or referred to, at a hearing which has been held in public. “CPR 31.22(2) is in wide terms. In particular, the only pre-condition to the making of an Order restricting or prohibiting the use of a document is that such document “has been disclosed”. As it seems to me, there is no requirement on any applicant under that rule to show that any such document has been read to or by the Court, or referred to, at a hearing which has been held in public”.
- If the court did not make the order, and the claimants wanted to obtain the benefit of the exception in CPR 31.22(1), they would themselves have to carry out the exercise of identifying what particular documents had been read to or by the court, or referred to, at a hearing which had been held in public. The SFO would take the risk of such exercise being carried out properly by the claimants, as the exception in CPR 31.22(1) did not depend on the court’s permission, but operated automatically.
- If the court did not make the order, the SFO would have to incur substantial and unnecessary costs. In view of the overriding objective (CPR 1.1: dealing with cases justly and at proportionate cost), this was to be avoided.
- The court would make the order subject to the requirement that, once the claimants had given notice to the SFO of their intention to use the documents for a collateral purpose, the SFO should not notify any relevant third parties about such intended use.
Rawlinson and Hunter Trustees SA v Tchenguiz and others [2015] EWHC 937 (Comm), 01 April 2015
