Using Documents Obtained in Court Proceedings for Other Purposes

By 21 February 2019General

There is an implied undertaking to the Court (or Tribunal) that documents obtained as a result of the compulsory processes of a court or tribunal will only be used for the purposes for which they were provided, and not be used for a collateral or ulterior purpose.

The rationale behind the undertaking was described in Riddick v Thames Board Mills Limited as:

Compulsion is an invasion of a private right to keep ones documents to oneself.  The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires.  The court should, therefore, not allow the other party—or anyone else—to use the documents for any ulterior or alien purpose.  Otherwise the courts themselves would be doing injustice.

In the British American Tobacco case, the Court of Appeal in Victoria described the purpose as:

The primary purpose of implying such an undertaking, it seems, is to protect the subject parties’ privacy and thereby inter alia to encourage full and frank disclosure whenever required for the purposes of the litigation.

The High Court in Hearne v Street described it as:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of a court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any other purpose other than that for which it was given unless it is received into evidence.

The obligation applies to the following types of documents: pleadings, other than an originating process; documents inspected after discovery; answers to interrogatories; documents produced on subpoena; documents produced for the assessment of costs; documents produced pursuant to a direction from a referee or an arbitrator; documents seized pursuant to an Anton Piller order; witness statements and affidavits; expert reports; statements of admissions of fact.

This means that, if a party to proceedings, or a third party (for example an expert) comes into possession of any of these documents, or any other documents, that might be disclosed as part of the court process, they cannot be used for any other purpose including: publication; disclosure to other persons; as evidence in other proceedings; providing to the media or referring to documents during a media interview; investigating or commencing criminal proceedings against the party that provided the material; commencing proceedings for defamation against the author of any allegedly defamatory remarks contained in the material; the use of documents to commence a cross-claim against an existing party or a new party.

The obligation binds the lawyers acting for the parties, the parties themselves, and any other third party, for example a witness or an expert witness.

If a person breaches the implied undertaking, he or she could be liable for contempt.

If you are involved in a litigated dispute, you should always use an experienced litigation solicitor.  David Sachs has acted in thousands of cases in all jurisdictions for 30 years.  Members of his team have 10+ years of experience.