Whether disclosed documents could be used to see if they might be relevant to separate 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 Weekly Update 16/14 we reported that the claimant had been given permission under CPR r31.22 to send documents disclosed to it by the defendant to independent counsel who could then advise whether any criminal offences had been committed. In this case, the claimant applied for permission to instruct a review team to ascertain whether the disclosed documents might also be used in a pending appeal in separate proceedings in Guernsey.
Eder J granted permission. He held that the crucial point was that the proposed course of action did not, at this stage, involve the use of the disclosed documents in the Guernsey proceedings. It merely involved the claimant obtaining legal advice with a view to, if appropriate, making a further application in these proceedings pursuant to CPR r31.22. To refuse permission would be to deny the claimant the chance of making that further application and that would be unfair and amounted to a “special circumstance” in favour of granting permission.
The existence of a separate procedure under the Evidence (Proceedings in Other Jurisdictions) Act 1975 which allows the Guernsey courts to seek the assistance of the English courts in obtaining documentary evidence within England was a highly relevant consideration but in this case, that procedure could not be followed unless and until the proposed course of action was carried out.
The judge ordered the claimant to pay the defendant’s reasonable costs in complying with the order (although the defendant could apply to set aside the order if it subsequently transpires that significant costs are likely to be incurred).