Whether disclosed documents could be used to obtain legal advice on the possibility of criminal proceedings


CPR r31.22 provides that a party to whom a document has been disclosed may use that document only “for the purpose of the proceedings in which it is disclosed” except if (amongst other things) the court gives permission. 

In this case, the claimant wanted to provide documents disclosed by the defendant to independent counsel (not instructed by the claimant in these proceedings) in order to ascertain whether any criminal offences had been committed by either the defendant or a third party (with a view to possibly initiating a criminal prosecution). Eder J held as follows:

  1. The permission of the court was needed. Although there was a strong argument that a litigant should be able to instruct the lawyer of his choice, and that the claimant would be entitled to “let its mind wander” to consider any possible criminality when reviewing the disclosed documents, “ultimately, the answer depends on the proper characterisation of the “purpose” for which the documents are “used””. The court should be astute to ensure that disclosure is not used for “some collateral purpose or ulterior motive”. The obtaining of criminal law advice was not properly characterised as being for the purpose of the current proceedings.
  2. However, in this case the judge was prepared to grant permission. The fact that documents are to be used for a collateral purpose cannot be a bar to the grant of permission. However, the burden of proof lies on the applicant. The relevant factors here were that: 
  1. The proposed course of action was of a very limited nature (i.e. to obtain advice and not, for example, to deploy the documents in any existing criminal proceedings)
  2. It would be a very drastic restriction to prevent a party from obtaining legal advice for whatever reason
  3. The documents “belong to” the defendant and not a third party
  4. The proposed course of action relates to serious criminal offences