Two recent judgments provide guidance on the application of the important rule in Part 31.22 of the Civil Procedure Rules (CPR 31.22) that disclosed documents must not be used in proceedings other than those in which they are disclosed.
Grosvenor Chemicals Ltd and others v UPL Europe Ltd and others  EWHC 1893 (Ch)
In the main proceedings, the claimant (C) alleged that the defendant (D) was selling counterfeit versions of their products. D disclosed email correspondence between their employees and a former employee of C, Dr Affi, which suggested that the product complained of was formulated to match C's product.
In correspondence with D, C alleged breach of confidence. C amended the Particulars of Claim accordingly, and sought permission to add Dr Affi to the existing proceedings.
C's solicitors also wrote to Dr Affi, outlining the allegations and threatening to bring separate proceedings against him.
D claimed that C had breached CPR 31.22 by making collateral use of the disclosed emails.
Birss J held that the correspondence with D did not breach CPR 31.22, as the documents were used for the purpose of the proceedings in which they were disclosed. It is consistent with CPR 31.22 to join a third party as a co-defendant in proceedings if a party identifies from documents disclosed in those proceedings that there is a proper arguable case for doing so. Nor would it breach CPR 31.22 to amend the Particulars of Claim in those proceedings.
However, the correspondence with Dr Affi breached CPR 31.22. The threat of issuing new proceedings against Dr Affi was clearly a use of the disclosed documents that went beyond the existing proceedings. This was distinct from seeking permission to join Dr Affi as a co-defendant.
Overall, however, Birss J considered that as there had been no deliberate attempt by C and its solicitors to flout the rules, it would not be in the public interest to bring contempt proceedings, so he refused D's application for permission to do so.
The Libyan Investment Authority v Societe Generale SA and others  EWHC 2631 (Comm)
C applied for permission under CPR 31.22 to review documents that had been disclosed in separate proceedings. C wanted to consider whether to use the documents in possible new proceedings involving two of the original defendants and third parties.
Whilst it was held the court-appointed receiver bringing the application on behalf of C did not have the requisite power to do so, Teare J considered (obiter) the 'special circumstances' which would justify an exception to the general prohibition in CPR 31.22.
An example is where the public interest in facilitating an investigation or prosecution of criminal offences overrides the public interest in enforcing the collateral use restriction. The facts of each case should be carefully examined. Considerations include: if there is a prima facie case for the prospective new proceedings, the outcome of the case in which the documents were originally disclosed, whether disclosure would risk causing serious irremediable harm to others, and whether the relief sought was proportionate or if an alternative (such as pre-action or third party disclosure) would be available.