Appropriate use of documents obtained during the course of court proceedings

Some people may think that proceedings before the court are public and that all information and documents associated with those proceedings are also public. This is not correct.

While the existence of proceedings is a matter of public record and the courts are generally open to the public, there is certain information that is not readily available and a member of the public will not necessarily be entitled to access a court file simply because they are curious or have a passing interest in knowing what certain people are up to.

Parties to the court proceedings are also subject to certain restrictions regarding what information can be shared and with whom. If you are a party to court proceedings you should be aware of what restrictions are in place as the inappropriate use or disclosure of information or documents obtained during the course of the court proceedings can be a contempt of court.

Generally, information or documents that someone is compelled to provide during the course of the proceedings, for example in response to a subpoena or orders for discovery, cannot be used for a purpose other than the conduct of the proceedings in which they are produced. This obligation arises both at common law (which is generally referred to among legal practitioners as the "Harman Undertaking" or implied undertaking) and pursuant to the rules of the court.

The court rules appear to relate specifically to discovery as they state:

"No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court." (See rule 21.7 of the Uniform Civil Procedure Rules 2005 (NSW) )

However, the Harman Undertaking extends beyond discovery. The Harman Undertaking originates from the decision inHarman v Secretary of State for the Home Department [1983] 1 AC 280 (the Harman Case). In the Harman Case the defendant allowed a journalist to see documents which had been provided to the defendant while she was acting as a solicitor in court proceedings. The court held that where documents are disclosed under the compulsory process of the court during the course of legal proceedings, the parties to the proceedings (and their solicitors) are subject to an implied undertaking not to use the documents for a collateral or ulterior purpose: the reasoning being that the compulsion to produce the documents constitutes a very serious invasion of the privacy and confidentiality of a litigant’s affairs.

Who is subject to the undertaking?

The undertaking will extend to any person who receives documents or information to which the undertaking attaches, such as the parties to the proceedings and their solicitors. It has also been held in subsequent cases that the undertaking can apply to third parties.

What can't you do with the documents/information?

The Harman Case states that the documents or information cannot be used for a "collateral" or "ulterior" purpose. There is substantial case law on what constitutes a collateral or ulterior purpose and it would include:

  • disclosure to the media;
  • use in subsequent proceedings; and
  • disclosure to a regulator.

When does the undertaking end?

The undertaking will cease to have effect in limited circumstances. This would include when the material is received into evidence in open court and the information within the material becomes public or if the court grants a person leave to be released from the undertaking.

What happens if you breach the undertaking?

A breach of the undertaking is a contempt of court and penalties will apply if you are found guilty of contempt.

Before releasing or using documents or information, remember to consider the circumstances under which you came into possession of them.