When public and private interests clash: Can you use records obtained under compulsion for extraneous purposes?

To paraphrase a well-known quote: to litigate once may involve a compulsory disclosure process, to litigate twice may invoke the need to seek a release from the Harman undertaking.  

Where one party to litigation is compelled (usually by a court rule or specific court order) to disclose documents or information, the party obtaining the disclosure cannot, without leave of the Court, use the documents or information for any purpose other than that for which they are given, unless they are received into evidence. This principle applies to a range of material, including discovered documents, answers to interrogatories, and documents produced on subpoena.  

The basic premises underlying the undertaking include: to encourage full and frank disclosure between litigating parties, to protect confidentiality where compulsion can otherwise violate that right and to balance out these competing interests (compulsion vs confidentiality). 

So, assuming the obligation attaches in a specific case, how does a party obtain leave of the Court? 

The application itself is made to the Court to whom the obligation is owed. Notably it should be made prospectively: if the documents are required for new legal proceedings (e.g. to plead a statement of claim) then an application should first be made to the Court in which the first matter was heard.  

Assessed under the guiding principle of public interest, relevant considerations include: 

·         The nature of the document;

·         The circumstances under which the document came into existence;

·         The attitude of the author and any prejudice the author may sustain;

·         Whether the document existed before the litigation, or was created for that purpose and therefore expected to enter the public domain;

·         The nature of the information in the document, in particular whether it contains personal data or commercially sensitive information;

·         The circumstances in which the documents came into the hands of the applicant; and

·         The likely contribution of the document to achieving justice in another proceedings (the pre-eminent consideration).

 The Court will exercise its broad discretion to dispense or modify with the obligation in ’special circumstances’. Notably, however, ‘special circumstances’ do ‘not require that some extraordinary factors’ be shown’ and in fact a ‘good reason’ will suffice.

 The extent to which you as a party (or as a director of a company being a party) might reasonably rely on a Court process in order to rely on a dispensation or modification of the Harman undertaking and to ensure you are not at risk of breaching the obligation, requires the input of qualified solicitors. If you require further information or assistance, please reach out to MPH team at 08 9221 0033.