M34: Collateral use of documents etc.

Collateral use of documents

Collateral use of disclosed documents (analogy with civil proceedings)

“We were referred to CPR 31.22. Our decision was that this CPR was not binding in this Tribunal but we should have regard to the underlying purpose of the rule. We considered that the purpose of the rule was to protect witnesses against unanticipated use of their evidence and documents in proceedings other than those in which they were served.” (Pierhead Drinks Ltd v. HMRC [2016] UKFTT 286 (TC), §284).

Pre-CPR

“Before the enactment of the Civil Procedure Rules 1998 it was an established rule that documents disclosed upon discovery could not be used for any collateral purpose without either the consent of the disclosing party or the leave of the court.” (Tchenguiz v. Director of the Serious Fraud Office [2014] EWCA Civ 1409, §55).

CPR:

“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 hearing which has been held in public;
the Court gives permission; or
the party who disclosed the document and the person to whom the document belongs agree.” (CPR r.31.22(1)).

Exception (court order)

“The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.” (CPR r.31.22(2)).

Collateral use of documents

Collateral use of witness statements

CPR: “(1) Except as provided by this rule, a witness statement may be used only for the purpose of the proceedings in which it is served.
(2) Paragraph (1) does not apply if and to the extent that –
the witness gives consent in writing to some other use of it;
the Court gives permission for some other use; or
the witness statement has been put in evidence at a hearing held in public.” (CPR r.32.12).

Principles in relation to permission broadly similar to those applicable broadly similar to collateral use of documents

“It was also common ground that the principles applicable with regard to the witness statements application are broadly similar to the other applications made solely under CPR 31.22(1)(b).” (Rawlinson and Hunter Trustees SA v. Director of the Serious Fraud Office [2015] EWHC 266 (Comm), §6).

Admitting witness statement as evidence of fact that it was served in earlier case permissible

“In any event, in so far as the two statements were relied on as a fact of what was said in support of the earlier proceedings, rather than the truth of it, there was no reason to keep the statements out. It was a fact that they had been served in the other proceedings and excluding that evidence would effectively deny that fact, which was not justice.” (Pierhead Drinks Ltd v. HMRC [2016] UKFTT 286 (TC), §285).

Not admitted as evidence of facts contained therein if witness not called

“Mr White’s statement was relied on as evidence of the truth of what it contained, and in the absence of Mr White, we saw no reason to admit his evidence. So we said HMC could rely on it as evidence of the fact his statement was served but not as evidence of the truth it contained. If they had wanted to do that they ought to have called Mr White. However, they were entitled to put the contents of the statement to the appellants’ witnesses in cross examination to see if it was denied or accepted.” (Pierhead Drinks Ltd v. HMRC [2016] UKFTT 286 (TC), §284).

Collateral use of witness statements

Reasons for rule

“First, a party receiving documents on discovery impliedly undertakes not to use them for a collateral purpose. Secondly, the obligation to give discovery is an invasion of the litigant’s right to privacy and confidentiality. This is justified only because there is a public interest in ensuring that all relevant evidence is provided to the court in the current litigation. Therefore the use of those documents should be confined to that litigation. Thirdly the rule against using disclosed documents for a collateral purpose will promote compliance with the disclosure obligation.” (Tchenguiz v. Director of the Serious Fraud Office [2014] EWCA Civ 1409, §56).

Reasons for rule

Referred to at a public hearing

Purpose of exception (open justice)

“the central theme of these rules is the importance of the principle that justice is to be done in public, and within that principle the importance of those attending a public court understanding the case. They cannot do that if the contents of documents used in that process are concealed from them: hence the release of confidence once the document has been read or used in court.” (Lilly Icos LLC v. Pfizer Ltd (No.2) [2002] IP&T 274, §9).

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself whilst trying under trial.” (Home Office v. Harman [1983] 1 AC 280 at 303, Lord Diplock quoting Jeremy Bentham).

“When a witness statement forms part of the evidence given at a trial, the principle of open justice requires that a member of the public or press who wishes to do so should be able to read the statement – in just the same way as they would have been entitled to hear the evidence if it had been given orally at a public hearing in court. That is the rationale for the right of a member of the public under CPR 32.13 to inspect a witness statement once it stands as evidence in chief during the trial, unless the court otherwise directs.” (Blue v. Ashley oao Times Newspapers Limited [2017] EWHC 1553 (Comm), §14, Leggatt J).

“Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. the rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed. It is an age old question. Quis custodiet ipsos custodies – who will guard the guards themselves? In a democracy, where power depend on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.” (R (Guardian News & Media Ltd) v. City of Westminster Magistrates’ Court [2013] QB 618, §1, Toulson LJ).

Includes pre-reading and documents referred to

“As submitted by Lord Pannick QC, direct oral reference is of course sufficient to engage the exception to the rule, but is not necessary; on the contrary, the case law makes clear…that this rule is concerned with ‘open justice’ and in particular that the modern practice of witness statements standing as evidence, and Judge reading skeleton arguments and other documents in private in advance of hearings, should not be allowed to, and so does not, limit the application of CPR 31.22(1)(a), nor indeed the rights of the public to apply for copies of documents on the court record.” (Rawlinson and Hunter Trustees SA v. Director of the Serious Fraud Office [2015] EWHC 266 (Comm), §76).

But the judge must have been specifically alerted to the document

“…not everything that is disclosed or copied in court bundles falls under this rule: the Connaught approach is restricted to documents to which the judge has been specifically alerted, whether by reference in a skeleton argument or by mention in the ‘reading guide’ with which judge are now provided at least in patent case.” (Lilly Icos LLC v. Pfizer Ltd (No.2) [2002] IP&T 274, §8).

A public hearing must have actually taken place

“since the Connaught approach is based upon the assumed orality of a trial, documents, however much pre-read by the judge, remain confidential if no trial takes place, but the application is, for instance, dismissed by consent, albeit by a decision announced in open court…” (Lilly Icos LLC v. Pfizer Ltd (No.2) [2002] IP&T 274, §8).

Does not include pre-trial application where not used as evidence

“Although the parties' witness statements were referred to at the April hearing, the reason for referring to the statements and placing them before the court was to enable the court to see the scope of the factual evidence that will be given at the trial. A similar situation arises where, for example, witness statements are placed before the court at a pre-trial review. The statements will only be put in evidence if and when the trial takes place and the witnesses are called to give oral evidence – at which point their statements will stand as their evidence in chief.” (Blue v. Ashley oao Times Newspapers Limited [2017] EWHC 1553 (Comm), §18, Leggatt J).

Referred to at a public hearing

Exception to documents referred to in public hearing: very goods reasons required

“the position under CPR 31.22(2) is not merely that the burden is on the applicant to justify the restriction/prohibition being imposed but also that the applicant who wishes to restrict or prohibit the use of documents which have been read out or referred to in court must show ‘very good reasons’ for overriding the principles of open justice and transparency.” (Rawlinson and Hunter Trustees SA v. Director of the Serious Fraud Office [2015] EWHC 266 (Comm), §85).

Consider: (i) public interest; (ii) centrality of documents to public hearing; (iii) relevance to collateral purpose; (iv) existing public knowledge; (v) unfairness of selective collateral use

“there are, in my judgment, very good reasons here for making an order…
First, all the documents relate to the SFO’s criminal investigation and therefore engage the strong public interest against collateral use…
Second, the loss of the CPR 31.22 protection in the present case occurred adventitiously, by reason of marginal (or at least fairly minimal) references in the context of the proceedings as a whole…
Third, the documents will at best be of limited utility in the Guernsey Proceedings…
Fourth, the contents of the documents have not, so far as anybody is aware, been any more widely disclosed than to the parties.
Fifth, the SFO’s overall unfairness point…[“I am persuaded that it would be very unfair on the SFO to permit R&H to use the limited documents which it has selected from the total quantity of documents disclosed… (§39)]” (Rawlinson and Hunter Trustees SA v. Director of the Serious Fraud Office [2015] EWHC 266 (Comm), §§88 - 93).

“In our view, the most important feature of this case…is the very limited role that p 2 played in the trial. If it had been placed in a physically separate document from p 1 of the schedule, and had not been, unnecessarily, referred to in passing by the patentee’s deponent, it would not have fallen under the terms of CPR 31.22(1)(a) at all. That consideration enables the court to take a somewhat less demanding approach to the claim for confidentiality than would otherwise be appropriate.” (Lilly Icos LLC v. Pfizer Ltd (No.2) [2002] IP&T 274, §27).

Application for permission

“The general principles which emerge are clear:
(i) The collateral purpose rule now contained in CPR 31.22 exists for sound and long established policy reasons. The court will only grant permission under r.31.22(1)(b) if there are special circumstances which constitute a cogent reason for permitting collateral use.
(ii) The collateral purpose rule contained in s.9(2) of the 2003 Act is an absolute prohibition. Parliament has thereby signified the high degree of importance which it attaches to maintaining the co-operation of foreign states in the investigation of offences with an overseas dimension.
(iii) There is a strong public interest in factilitating the just resolution of civil litigation. Whether that public interest warrants releasing a party from the collateral purpose rule depends upon the particular circumstances of the case. Those circumstances require careful examination…
(iv) There is a strong public interest in preserving the integrity of criminal investigations and protecting those who provide information to prosecuting authorities from any wider dissemination of that information, other than in the resultant prosecution…” (Tchenguiz v. Director of the Serious Fraud Office [2014] EWCA Civ 1409, §66).

Application for permission