Judge considers meaning of "collateral use" of disclosed documents

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.

Documents were disclosed to the defendants in the course of other proceedings. It was not practical to obtain consent from the disclosing party and so the defendants asked the court whether it would be "collateral use" for them to review these documents to ascertain their relevance in the other proceedings but also with a view to deciding whether they wish to use those documents in these proceedings (in which case, permission would then be sought).

The judge noted that there is no clear authority on this issue. He said that it was clear from the wording of the rules that "Use for any purpose other than the proceedings in which the documents were disclosed (or the witness statement served) is the subject of the rules". That lead to the following conclusion: "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".

COMMENT: In essence, the issue will be whether the party to whom the document was disclosed has, by chance, discovered that the document could be used in other proceedings once the document was reviewed (whereas an intention from the outset to potentially use the document in other proceedings would amount to collateral use). Determination of that issue may therefore turn on the credibility of the party (or its legal team) carrying out the review, and that in turn may depend, to some degree, on the nature of the disclosed document and the issues in dispute in both sets of proceedings.