A non-lawyer would be forgiven for thinking that they could use any documents in their possession for the purposes of pursuing a claim. Whilst in the main that may be true (and indeed there is usually an obligation on a party to litigation to disclose documents relevant to the claim pursued), there are certain circumstances where restrictions on the use of some documents apply.
Under Part 31.22 of the Civil Procedure Rules, it is only possible to use a document disclosed by the opposition to a party during proceedings for the purposes of that specific claim unless:
- The document has been read or referred to in open court;
- The Court gives permission; or
- The disclosing party agrees to the collateral use.
In a previous blog, we wrote about a high-profile case concerning this restriction on the use of documents.
Duke of Sussex’s case against News Group Newspapers Ltd and MGN Ltd
The Duke of Sussex is currently pursuing two actions against news outlets (News Group Newspapers Ltd (NGN) and MGN Ltd (MGN)) in respect of alleged mobile phone message hacking. The Duke of Sussex has recently made an application for permission to rely upon three categories of documents disclosed to him in the case against NGN in the case pursued against MGN.
Before considering the categories of documents, the judgment of Mr Justice Fancourt does highlight how strict a rule Part 31.22 is. It is settled law that an application for permission is likely to be more favourably received by the Court if it is made before the collateral use of documents takes place rather than the application being retrospective. In this regard, the Judge discusses an argument about whether a solicitor not involved in the previous case reviewing the documents with a view to making an application for permission would be a breach of Part 31.22. The Judge said:
“What NGN suggested was that, acting as the Duke’s MNHL solicitors, Thomson Heath reviewed the MTVIL disclosure to find documents that might be helpful in the MNHL trial. They believed that Thomson Heath were not solicitors acting for the Duke in the MTVIL. If that were right, it would be in breach of the implied duty not to use disclosed documents for collateral purposes…”
In the current case however, the Judge found that Thomson Heath were solicitors acting for the Duke of Sussex in both sets of litigation and accordingly it was not a breach of Part 31.22 for them to review those documents with a view to making the current application as those documents were already in their possession.
The three categories of documents that the Duke of Sussex sought permission to rely upon were:
- “a series of invoices which record various searches that the PIs were instructed by Mr Worden to carry out…”;
- An email that could potentially go to the issue of whether a PI acted unlawfully; and
- A further email between a journalist at the Sun and Taff Jones of Severnside.
When considering the application, the Judge broadly summarised the criteria that must be considered when deciding whether permission should be granted, as follows:
“The test for giving permission for collateral use, put shortly, is whether the interests of justice favour permitting the documents to be so used. It is a broad discretion, but a number of decisions have established some principles. These are: that there must be a good reason given for granting permission; the grant of permission is exceptional, in the sense that it is not routinely given; and there must be cogent reasons for giving permission. The court must also be satisfied that there is no unwarranted prejudice to the disclosing party. That obviously means prejudice beyond the mere fact that documents only provided under compulsion are able to be used for collateral purposes, because otherwise the court would never grant permission.”
The Judge found that the second and third documents were not particularly relevant and/or did not prove any potential point to which it relates sufficiently well. The Judge further found that the documents could well be prejudicial to the Defendant as the only issue that they could go to was unlawful conduct. The Judge, therefore, refused permission to rely upon those documents.
In respect of the first category of document, the Judge found, having found earlier in the judgment that the documents were relevant to the case pursued against MGN, as follows:
“In relation to the first category of documents, however, there would be real injustice to the Duke in not being able to challenge the evidence of Mr Worden on the basis of documents that are known to him or his legal advisors. That amounts, on the face of it, to a good reason for permitting use of the documents. There is, in my judgment, no serious prejudice –if any –to NGN because the documents will not lead to any determination of whether what Mr Worden was doing when employed by NGN was unlawful. What matters is whether Mr Worden was doing things that were unlawful when he was self-employed and working on commissions for MGN. The truth of his evidence is, however, an important issue.”
Accordingly, the Duke of Sussex was permitted to rely upon the first category of documents but not the other two.
Comment
This judgment demonstrates how finely balanced the arguments in respect of the use of documents for a collateral purpose are and how much detail a Judge will explore before making a decision on whether permission should be granted.
It is therefore essential that expert advice is sought if such an application is being explored without delay.
How Nelsons can help
Kevin Modiri is a Partner in our expert Dispute Resolution team, specialising in private litigation, inheritance disputes, data breach claims and defamation claims. He is also recommended by the independently researched publication, The Legal 500.
If you have any questions in relation to the subjects discussed in this article, please contact Kevin or another member of our expert team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.
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