In Metropolitan Housing Trust Ltd v Tominey [2012] EWHC 3924 (Ch), the High Court allowed the Claimant to disclose confidential information relating to the Defendant to third parties (the Claimant’s regulator and the Police), despite the Claimant having undertaken to only use the information in relation to the present court proceedings.

The claim resulted from alleged bribes the Defendant received for awarding contracts with his former employer, the Claimant.  Freezing orders were sought against the Defendant’s assets, although before the orders were made the Claimant obtained disclosure from various banks, showing transactions which it believed substantiated its claim.

The Claimant wished to pass on evidence of the transactions to the Police and to its regulatory body; however, in receiving the information from the banks it had given an express undertaking not to use the information for any purpose other than for its claim.

The High Court acknowledged that an undertaking to restrict the use of information could not be easily overcome and that, following the decision in Bank of Crete v.Koskotas [1992] 1 W.L.R.919, a court would only allow this where there are special circumstances and where modification or release of the undertaking would not prejudice the person giving discovery (in this case the bank). Further, each case must always turns on its own facts. 

It was also noted that the Bank of Crete case clarified that a person’s legal obligation to disclose information was not itself sufficient reason for withholding disclosure. In Bank of Crete such an obligation had arisen by virtue of there being different disclosure obligations in different jurisdictions; however, in the present case, the Court ruled this extended to the different disclosure obligations owed by Claimant housing trust to its regulator (with no such duty being owed to by the banks to the housing trust regulator).

Consequently, it would “not be oppressive, unfair or otherwise inappropriate” to allow disclosure to the Police, as to do so would not infringe the Defendant’s privilege against self-incrimination. The Claimant was also entitled to disclose to its regulator “in order to be open, transparent and accurate in its dealings” with it.

Comment: The crux of the Court’s decision in this case was that disclosure was permissible because there was a legitimate interest in doing so, and that it would not infringe the privilege against self-incrimination (as the banks did not stand accused of any wrongdoing). Even so, allowing disclosure in breach of an undertaking where there is a legitimate interest on a case-by-case basis does introduce a degree of uncertainty in relation to the enforceability of undertakings. This is turn may make third parties more reluctant to disclose information in the first place.